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Federal Court of Australia |
Last Updated: 2 January 2002
Eaton v Overland [2001] FCA 1834
ADMINISTRATIVE LAW - judicial review - procedural fairness - application for relief based on whether procedural fairness accorded to officer of the Australian Federal Police in relation to decision on substantiation of allegation of inappropriate conduct - applicant was entitled to information - decision flawed - no improper exercise of power
ADMINISTRATIVE LAW - judicial review - apprehended bias - whether decision-maker who did not accord procedural fairness prevented from further participation in decision-making process
ADMINISTRATIVE LAW - Federal Police - no requirement in the circumstances to resort only to disciplinary mechanisms of the Complaints (Australian Federal Police) Act 1981 - status of officer - whether on secondment - effect
Australian Federal Police Act 1979 ss 28, 37, 38, 39, 40, 40H and 40L
Administrative Decisions (Judicial Review) Act 1977
Complaints (Australian Federal Police) Act 1981
Australian Federal Police (Discipline) Regulations 1979
Eaton v Overland [2001] FCA 876 referred to
White v Overland [2001] FCA 1835 referred to
Calvin v Carr [1980] AC 574 referred to
Preston v Carmody (1993) 44 FCR 1 referred to
Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 referred to
Omran v Australian Pastoral Commission (1991) 14 AAR 51 referred to
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 applied
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 considered
Gaisford v Fisher (1997) 45 ALD 87 referred to
Pilbara Aboriginal Land Council v Minister for Aboriginal And Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 referred to
Webb v R [1994] HCA 30; (1994) 181 CLR 41 considered
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 referred to
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 75 ALJR 277 referred to
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 75 ALJR 679 referred to
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 referred to
Oxford English Dictionary (2nd Ed)
Macquarie Dictionary (Revised Edition, 1985)
Christopher Eaton v Simon Overland & Another
A28 of 2001
ALLSOP J
SYDNEY
21 DECEMBER 2001
IN THE FEDERAL COURT OF AUSTRALIA |
|
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY |
BETWEEN: |
CHRISTOPHER EATON APPLICANT |
AND: |
SIMON OVERLAND FIRST RESPONDENT MICHAEL KEELTY SECOND RESPONDENT |
JUDGE: |
ALLSOP J |
DATE OF ORDER: |
21 DECEMBER 2001 |
WHERE MADE: |
SYDNEY |
THE COURT DECLARES THAT:
1. The decision of the first respondent made on or about 21 May 2001 to concur with the recommendation of the investigating officer that the allegation that Mr Eaton was a party to inappropriate use of the AFP email system contrary to the AFP National Guidelines for the Use of Electronic Mail of 14 July 1999 was substantiated, and so to decide that question, was made without providing the applicant with procedural fairness.
2. The decision referred to in order 1 above be set aside.
3. The first respondent be restrained from further participation in any decision or decision-making process concerning the applicant arising out of or connected with the subject matter of the investigation carried out concerning the sending of emails by the applicant in August to November 2000.
4. The first respondent pay the applicant's costs including the costs of the interlocutory proceedings.
5. The parties not enter these orders until the earlier of the expiration of 28 days from today or further order.
6. The parties have liberty to apply on 5 days' notice.
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 |
BETWEEN: |
CHRISTOPHER EATON APPLICANT |
AND: |
SIMON OVERLAND FIRST RESPONDENT MICHAEL KEELTY SECOND RESPONDENT |
JUDGE: |
ALLSOP J |
DATE: |
21 DECEMBER 2001 |
PLACE: |
SYDNEY |
1 Before the Court is an application for an order for review and under s 39B of the Judiciary Act 1903 for writs of prohibition and certiorari, injunctions and for various declarations in relation to what were said to be six decisions, being decisions of the former Commissioner of the Australian Federal Police (the AFP), and / or decisions, or possible future decisions, of the present Commissioner of the AFP, the second respondent, and / or his delegate, the first respondent, the Chief Operating Officer of the AFP. The application and what was argued before me are both best understood by immediate reference to the facts and evidence.
EVIDENCE AND FACTS
2 The applicant (Mr Eaton) is a member of the AFP and is currently working in Lyon, France, as a "Senior Liaison Officer" attached to Interpol. Acronyms are used as a common method of reference in many of the primary communications and so, from time to time, I will resort to such abbreviation. Senior Liaison Officer is shortened to "SLO".
3 The proceedings arise out of some conduct engaged in by Mr Eaton in August to November 2000. In large part it is not in dispute. What is in dispute is the lawfulness of the response by the AFP, through the respondents, to that conduct.
4 Mr Eaton is an experienced police officer. He has been a police officer for over thirty years. He received the Australian Police Medal in 1990. It was not disputed that Mr Eaton is a senior and experienced officer whose working life has been in large part as a police officer.
5 Mr Eaton's role at Interpol was, as a member of a liaison team, to develop, promote and maintain an efficient and effective Interpol network for co-operation in the Australasian and wider Asian region. He was also to represent the interests of the AFP on matters of law enforcement. It is perhaps unnecessary to go into the nature and detail of Mr Eaton's role and responsibilities beyond this, save to say that he was a senior officer of some standing, that he held a senior position representing the AFP at Interpol and that consequently he was required to approach his position as one of significant responsibility. In the directive appointing him, which was dated 18 March 1999 and signed by both the then Commissioner of the AFP, Mr Palmer, and Mr Eaton, there appeared the following paragraphs:
ResponsibilitiesAs a member of the Australian Federal Police, you remain responsible to me, [the Commissioner] reporting through Director, International & Operations. As a member of the staff attached to the Interpol General Secretariat Regional Co-ordination Bureau, you will have responsibility to the Director of Regional Co-ordination and Development.
Conduct
It is expected that AFP members serving overseas conduct themselves in such a manner as to not bring disrepute on either the AFP or the Australian Government. A draft copy of the AFP National Guidelines on Professional Standards is attached. You are also to be aware of the Guidelines issued by DFAT relating to Commonwealth Officers serving overseas (copy attached).
6 The AFP National Guidelines on Professional Standards which were attached to this directive were consistent with the senior position being taken up by Mr Eaton.
7 Mr Eaton took up the position in March 1999, moving to Lyon with his wife and family. The arrangements for, and in respect of, his family were relevant at an interlocutory level (see Eaton v Overland [2001] FCA 876); but it is unnecessary to deal with these matters in these reasons.
8 Mr Eaton says that as of July 2000 his appointment changed from that of an officer seconded to Interpol to that of a detached official employed by Interpol. Mr Eaton signed a contract of employment with Interpol on 23 June 2000, the date upon which the appointment was made. On 5 July 2000 Mr Eaton signed a declaration of loyalty as a detached official pursuant to Article 10 of the Interpol Staff Regulations. I deal with the detail of this alteration later, when examining the applicant's arguments that the change in employment arrangements disentitled the AFP from dealing with him.
9 In June 1999, Mr Eaton was supplied with a laptop computer which was to function as the equipment through which electronic mail (email) communication would pass to and from Mr Eaton, wherever he was, and the AFP in Australia. At this time Mr Eaton was also sent an envelope which contained, amongst other things, a copy of the then draft AFP National Guidelines for use of Electronic Mail and the AFP National Guidelines for the use of the Internet.
10 Mr Eaton's evidence was, and I accept it, that he could not recall looking at the draft guidelines. I find that the draft was sent to him, but that he did not examine it.
11 The draft guidelines in respect of electronic mail contained, relevantly, the following:
3. Content and Use [emphasis in original]The use of AFP email facilities must be consistent with the AFP's values.
3.1 Work Related Use
AFP email facilities, except as described later under Personal Use, [emphasis in original] are to be used only for AFP work related purposes which include:
...
AFP Personnel must not:
* Send or exchange inappropriate material which includes but is not limited to material that could be considered discriminatory, sexist, racist, political, defamatory, obscene, offensive, pornographic, vilifying, or harassing; or, [emphasis added]
* Forward chain letters or junk mail or advertising, circulate non work related material, partake in repartee; or
...
without lawful excuse and authority.
12 A final form of these guidelines was settled in or about June or July 1999. The evidence is somewhat unclear as to the precise date of such settlement. In any event, by July 1999 the final guidelines, which did not relevantly differ from the draft guidelines referred to above, were despatched by email to Mr Eaton in Lyon. He did not see them in all likelihood because he said, and I accept him, that he had difficulties with his laptop in 1999 for reasons which may have included the quality of the communication in Lyon or the lack of efficiency of the Australian service provider. To the extent that it is relevant, I find that Mr Eaton did not read the draft electronic mail guidelines sent to him by courier or the final version sent to him by email in mid - 1999. However, before he went to Lyon he was aware of an earlier draft of the electronic mail guidelines. It was on the basis of his knowledge of these guidelines that he said that when he did see the then guidelines in early 2001, in circumstances to which I will come, he was not surprised at their contents. On this basis, I find that in 2000 Mr Eaton was aware or appreciative of the existence or likely existence of some guidelines governing the sending of email containing provisions of the kind referred to in paragraph [11] above.
13 Between 1 August 2000 and 14 November 2000 Mr Eaton sent a number of messages by electronic mail to another officer of the AFP, a Mr White, who was stationed in Nicosia, Cyprus. (Mr White is the applicant in proceedings A39 of 2001 heard together with these proceedings. Judgment in Mr White's application is to be handed down today: see White v Overland [2001] FCA 1835.) He also sent one of the emails to a foreign colleague at Interpol and the latter's brother.
14 The following is a description of the emails sent, taken from a minute of Mr Overland dealing with the matter:
1 1 August 2000 attached cartoons2. 3 August 2000 text only
Bad Boy Bubby
3. 16 October 2000 attached Powerpoint file [photographic]
Bay Watch Wicked Weasel
4. 16 October 2000 attached Powerpoint file [photographic]
Bay Watch Wicked Weasel with modified text
5. 14 November 2000 attached j.peg files [photographic]
15 I described the material in my interlocutory judgment of 29 June 2001 as "ribald or sexually explicit". I think that suffices for the purposes of these reasons. Nothing turns, I think, upon the terms of the assessment and expression of these characteristics for the purposes of judicial review proceedings such as these. The word "pornographic" is used from time to time in the documents as descriptive of the material. Mr Overland has expressed the view that the material, in particular that sent on 14 November 2000, was of a "gross and pornographic nature". Minds might differ about such characterisation. However, I think that it is common ground that the description which I gave on 29 June 2001 is adequate to understand the subject matter of the relevant debate.
16 Each of the emails, with the exception of the second sent on 3 August 2000, was sent from Mr Eaton's private email address, at his home in Lyon. This second email was sent from Mr Eaton's Interpol email address. The email of 14 November, in addition to being sent to Mr White's AFP address, was also sent to a private address in Milan and to an Interpol business address.
17 All five emails were sent to the official AFP email address of Mr White. The fifth email, of 14 November 2000, was not received by Mr White. It was intercepted and quarantined by AFP "IT Security", whereupon an internal audit of the AFP computer system was commenced covering ultimately the period May 2000 to November 2000 in relation to email sent by Mr Eaton. The other emails referred to in paragraph [14] above were found in that internal audit. The matter was referred to the internal investigation branch of AFP which is known by the acronym of "II".
18 On 14 December 2000 Ms Beck, an agent in II, sent an email to Mr Eaton in the following terms:
Chris,I need to interview you about an II matter and request you be available for a telephone interview 8am Monday 18 December (your time). I anticipate the interview will take approximately 2 hours.
Please advise your availability and a telephone number where you may be contacted.
Regards
Karen Beck
CII
19 At this time Mr Eaton was otherwise unaware of any difficulty or problem with his conduct.
20 Mr Eaton responded by email on the following day indicating his availability on 18 December 2000.
21 On 18 December 2000 Mr Eaton received by email from Ms Beck a "Direction to Furnish Information" under the heading "Allegation" said to be issued under "Commissioner's Order 6". Such orders were made by the Commissioner under the power contained in s 38 of the Australian Federal Police Act 1979 (the AFP Act). The direction was, relevantly, in the following terms:
AN ALLEGATION has been received that:You have been party to the inappropriate use of the AFP email system contrary to the `AFP National Guideline for the use of Electronic Mail' of 14 July 1999.
I THEREFORE DIRECT YOU in accordance with Section 8, Subsections 2(d), (e), (f) and 2(g), of Commissioner's Order 6 to forthwith:
Furnish all information in your possession and answer all questions relevant to the mentioned allegation/s. In addition you are also directed to furnish all information by way of written report, produce any notes, documents, (including tape recordings) and records that may be relevant to the same allegation/s, to produce, or bring into existence, any thing that is relevant to this investigation and, to do anything else that is reasonably necessary for the purpose of obtaining evidence that is relevant to this investigation.
22 Also on 18 December 2000 a telephone interview took place between Ms Beck and another agent, Mr Killmier, and Mr Eaton. A copy of the transcript was put in evidence. Mr Eaton read the above email prior to the interview commencing.
23 In the interview, after preliminaries, Mr Eaton was asked about the emails sent by him. He said that he was not aware that the AFP monitored incoming emails, but it did not surprise him. When asked about sending what might be inappropriate material he said that he would use his home email address. He said he was not aware that the AFP had national guidelines for the use of electronic mail dated July 1999; though he said he knew guidelines existed concerning unprofessional use of the email system. He was read out parts of the guidelines. He was also read out parts of earlier guidelines. Before having his attention drawn to the emails in question, he said he did not recall sending anything inappropriate from his home computer to an AFP address. He said he would send private emails to private addresses. In discussion of the emails in question he said he thought he sent them to the private address of Mr White. In discussion of the content of these emails Mr Eaton recognised that they would fall into the category of inappropriate use of the AFP email system. He said that he had intended to send them to Mr White's private address. He said that he must have used the wrong short cut method of sending them on his computer. He said Mr White did not tell him that these emails came over the AFP system. He said that it was not the sort of material he would send on the AFP system. In relation to all emails, Mr Eaton said that he must have double clicked the wrong send entry on his computer for Mr White, that he did not intend to send them to Mr White's AFP address and that Mr White did not alert him to the fact that he had sent them to the wrong address. He accepted that he had been "inordinately careless". One of the more explicit materials (that of 14 November) was sent to an Interpol address at the request of the (non AFP) Interpol officer. Mr Eaton accepted that this was "incautious". He also sent the material to Mr White as a "cc". Mr Eaton accepted that a "normal prudent person" would have considered some of the material obscene and offensive. He was asked questions, apparently irrespective of the sending of the material to an AFP address, concerning whether "transmission of this type of material exhibits a commitment to the values, particularly in relation to the eradication of sexist and offensive behaviour in the workplace." At one point the following exchange took place:
Q Okay. So, for twelve months you have been, um, sending material which can be described as inappropriate, some of it can be described as highly inappropriate, but you've not bothered to check which address you are sending the material to.A Oh, okay, well, you - I - I accept that, yes.
Q Well, do you have any explanation for it? You accept the statement, but do you have explanation for it?
A No, I don't. My-my explanation is the same as I had before - carelessness and stupidity.
24 The following exchange also took place concerning the sending of the material to the Interpol officer:
Q Even assuming that, and not knowing the specifics, do you agree that it's still highly inappropriate - inappropriate to be using the Interpol networks to send any kind of material of that description?A Yes. I don't know whether - the word "highly" but it's inappropriate, certainly.
25 Towards the end of the interview which lasted about two and a quarter hours, the following exchange took place:
KILLMIERQ Chris, is there anything further you want to say in relation to the matters we've discussed here this evening here, and this morning there?
A Um, let me just think for a moment, Des.
Q Sure. Take - take it easy. Just have a - have a think.
A Yeah. Well, I'll - I'll take - I'll just make a couple of points. Ah, I said earlier that I'm a - I'm an isolated AFP employee. I'm a long way from, ah, ah - not - not geographically, but electronically, from the AFP. Ah, I believe that I've shown some very poor judgment in the - certainly in the last, ah, email exchange that you've described. In the first, ah, you call them four, which is the three that were the Bay Watch series, ah, and the first, which were the cartoons, I'm saying to you that they - they were, ah, inadvertently sent to the incorrect address and, ah, and I did not intend to publish them widely, but from a private address to a private address. I do not accept that the "Bad Boy bubby" ah, email has - has - could be viewed as anything but, ah, trivial and frivolous and that was the - context in which it was used. Ah, I - I accept my culpability in the - in the last, ah, range of photographs. I, ah - I would be very regretful if, in any way, this has affected Peter WHITE who solicited nothing from me, ah, and, ah, he has only - if he's suffered from being a close personal friend of mine, then, I, ah - then I deeply regret that. I deeply regret the, ah - the implications that I've, ah brought the AFP into - into disrepute because of that. I believe that, ah - that my history and my - my background is such that, ah - that I have not done anything but try to support the AFP, ah, and try to support and to uphold the - the AFP over - over many years and, er, and I'm not gunna shy away from my - from my blame in this. I would want to see that any damage is minimised. Er, the fact that - that you interviewed me is a, ah - is a commencement of a process, I have no doubt. Ah, I would hate to think that that process would, ah - would, ah, escalate into a - into a Interpol exercise. I'm prepared to, ah - to wear the, ah - ah, my errors, ah, and to - to not fight - not that this is important, I'm just simply stating here that I'm - I'm a person who will take the - the punishment that's - that's meted out, ah, to me and I don't want to see this escalate in any other fashion. Ah, I think that's probably all I - I want to say, ah, and I'm happy to have any further questions, if you wanna ask them.
Q I just have some formal concluding questions, and that's not to say that if you don't think of something you can't get back to us and, um - and just on the point of you being an isolated AFP officer, I believe that these sort of interviews can be traumatic and I just remind you, if you need to contact welfare-type people, or even get back to us, then please feel free to do so in that context, okay - in the sense that you might be feeling quite isolated and you might be suffering a bit of shock. These things aren't pleasant.
A Yes
Q Okay. So, do you possess any additional knowledge of this matter not mentioned during the interview?
A Ah, no.
Q You're reminded that if you discover any further documentation, or any other information relevant to this matter, after this record of conversation that you are obliged to forward it to this office. Do you understand that?
A Yes, I do.
Q You're also reminded of the Secrecy Provisions applying to information and documentation gained by you after this record of interview. Do you understand?
A Yes, I do.
Q Do you have any complaints about the way this record of conversation has been conducted?
A No, not at all
Q Okay. We'll formally turn the tape off now, at eight twenty six. Any more questions, Karen?
BECK
No thanks
KILLMIER
Q Nothing else, Chris?
A Well, I just need to understanding, from, ah, from you the process ---
...
Q Base - basically we'll - we'll just be reporting through to Professional Standards, through - sorry, through to Peter Wood and what decisions happen after that - ah probably Karen's the one to answer the question best there, because ---
A Okay
...
BECK
Q Yeah. Chris, we still got some - some other work to do on it, obviously, um, and the process these days is that it will be reported through to Peter WOOD. However, Peter WOOD is the person who's raised the allegation so, therefore, it'd have to go to somebody else independent to review. But in any event, it will end up before the Professional Standards Review Team, which is the old PIT. Do you remember the PIT?
A Yes, I do.
Q Okay. Well, that's just a new name for an old - for the same process. And it will be going before the PIT. After that, I really can't tell you what would happen, but I ---
A I understand.
Q --- I anticipate that if all goes well from time point of view, from our inquiries, it will be going before the PIT by the end of January, noting that Christmas breaks and that sort of thing will cause some delays, as well.
A Okay. All right.
Q All right
A Okay. Thank you, Karen, for - that - that description, thank you.
26 On 5 January 2001 Ms Beck prepared a report about Mr Eaton and Mr White under the title "Operation Pillbox". Before setting out a descriptive summary of the investigation and of the responses to the allegations of Mr Eaton and of Mr White, the report set out the following:
AllegationThat F/A [Federal Agent] Peter White...and F/A Christopher Eaton...had been party to the inappropriate use of the email system contrary to the `AFP National Guideline for the Use of Electronic Mail of 14 July 1999 - substantiated.
27 Under a heading "Discussion" the following appeared:
During their interviews it is regrettable that both White and Eaton had selective memories that only improved each occasion when specific examples were put to them. In Eaton's case his memory remained vague even in relation to the nature of the photographs he sent on a one-off occasion to his colleague in Interpol Lyon, and the colleague's brother in Italy. The fact that both officers' memories were vague over the type of material that was shared between them could suggest it was deliberate, in contravention of the Direction served on them, or it was genuine owing to the volume and nature of the private material despatched and received.Both members agreed the Baywatch series was inappropriate material, but debated the classification of the cartoons. Additionally both agreed that they had contravened the AFP Guidelines, if that is what the AFP says, but had no real idea of their contents, a fact that does not excuse their behaviour.
Eaton's assertion that the inappropriate material was sent to White's AFP email address by accident because he could not differentiate between White's private and work addresses, demonstrated a `culpable' negligence in his handling of such inappropriate material. He stated that he has had both of White's addresses on his address list for about 12 months and has never checked them. Owing to the logistics of identifying and deciphering inappropriate material on the AFP Net, the IT audit was only conducted for a 6 month period. It is unknown how many other occasions Eaton sent inappropriate material to White.
On a number of occasions Eaton reminded II that all the material he sent was readily and openly available. He receives large volumes of unsolicited material of this type on his private email address, even though his wife and twin 17 year old daughters also use the same address. This may explain his cavalier approach in handling pornographic material.
White advised II that it was inappropriate for the Baywatch material to be on the AFP Net so he re-directed it to his private email address, yet he failed to remonstrate with Eaton for sending it to that address in the first place. Additionally he claimed to have requested a French police officer in Lebanon and a member of the Cypriot Police to re-direct similar emails to his private address, yet failed to give the same instructions to Eaton.
The material that Eaton sent to Italy and a colleague in Interpol (with a blind copy to White's AFP address) is pornographic. Given the circumstances of it being placed on the Interpol Net by a senior representative of the AFP, despatched to a civilian in Italy, and attempted to send it to another senior officer on the AFP net, this action had the potential to do most damage to the AFP in its international context. It is alarming that Eaton felt he had to compromise his and the AFP's values "for the benefit of ah, of ah, of your continued workability and you, your capacity to deliver a product means that you gotta do...." I concur with Eaton's own admissions that he has shown some "very poor judgement" and that he was "culpable for stupidity".
No inquiries have been made of Interpol in relation to this matter, and if Eaton's knowledge of Interpol's electronic communication network is correct, his Italian colleague Angelo Galifi would not have been able to re-direct that material from the workstation that he received it on. The fact that such security measures are in place indicates that Interpol is not only protective of the integrity of its systems, but also the content of material circulated.
28 Then, under the headings "Conclusion" and "Recommendation" the following appeared:
Conclusion:Although White was the passive partner in this matter, his failure to report Eaton or at the very least, to remonstrate with him, contributed to Eaton's continued behaviour. In that aspect, White is equally culpable. Eaton's actions have not only involved the AFP, but Interpol, and a civilian in Italy, with the potential to cause serious embarrassment, particularly at the General-Secretariat.
The investigation has revealed the allegation against both employees is substantiated.
Recommendation:
That the findings are endorsed against F/A C. Eaton and F/A P. White;
F/A White be counselled and reminded of his obligations under the AFP National Guideline for the Use of Electronic Mail;
The matter relating to F/A Eaton be referred to the PSRT for assessment as to his deployment suitability;
Senior management consider reporting the matter to Interpol for information;
DIO arrange for all AFP Liaison officers to receive individual hard-copies of the National Guidelines and sign a receipt. The DIO may also consider the viability of the Guidelines being included as an attachment to the Commissioner's Directive to future overseas Liaison Officers.
29 During the hearing senior counsel for Mr Eaton accepted that Ms Beck's report could only be seen as a recommendation and not a relevant decision.
30 On 16 January the matter was discussed at a Professional Standards Review Team (PSRT) meeting, which the first respondent Mr Overland, (the Chief Operating Officer or COO of the AFP) attended. The PSRT's function is to advise the COO on matters concerning employment suitability and professional standards. There was discussion as to how the matter should be handled and it was agreed that Mr Overland would discuss the matter with Mr Palmer and with Mr Hughes, the latter gentleman being the General Manager International Federal Operations (GMIFO). Mr Overland passed the II file, including the 5 January report, to Mr Palmer on or about that date.
31 On 19 January 2001 Mr Eaton, who had by this time received the sound recordings of the interview, requested by email a copy of the guidelines and, expressing some curiosity, sought an explanatory response from Ms Beck as to the length of time between the first inappropriate email and the interview, saying that that was the first advice to him that there was any problem. Ms Beck replied to this email. On 29 January Mr Eaton received a copy of the guidelines, faxed to him.
32 On 29 January 2001 Mr Palmer wrote to the first respondent, Mr Overland, a minute in relation to Operation Pillbox. The minute stated:
I have read and considered the file on the above investigation into the inappropriate use of the AFP e-mail system overseas by Federal Agent Christopher Eaton and Federal Agent Peter White.I am satisfied the allegation has been clearly substantiated. The nature of the material identified by the investigation requires that the matters be dealt with as serious breaches of not only AFP National Guidelines but also the wider standards expected of AFP employees. That said, the conduct of Federal Agent Eaton, as the initiator of the communications, is, on all of the available facts significantly more serious and disturbing than the behaviour of Federal Agent White. [emphasis added]
Accordingly, in all the circumstances I agree with recommendation (2) of Federal Agent Beck that Federal Agent White be counselled and reminded of his obligations under the AFP National Guideline for the Use of Electronic Mail.
The matter concerning Federal Agent Eaton is more difficult to resolve. In instances of inappropriate or unacceptable behaviour regard must be given to the overall career record of the person concerned, with particular reference to normal levels of behaviour and performance. However, the totally unacceptable nature of the material which was e-mailed by Federal Agent Eaton (particularly the three photographs sent on 13 November 2000) makes it necessary to seriously consider his suitability for continued deployment at Lyon and raises questions regarding his overall suitability. Not only is much of the material clearly pornographic, there are four separate communications which have been identified in a period of six months. As I understand the evidence, at least one communication was forwarded on to the Interpol network whilst two communications were actually sent from the Interpol system. [emphasis added.]
Whilst this behaviour may not be viewed as seriously in France as in Australia, certainly the matter needs to be referred to Interpol management for their information and advice. I would take account of the seriousness with which the behaviour was viewed by the Secretary-General of Interpol in making a final decision as to an appropriate penalty. [emphasis added]
In order to further progress this matter, Federal Agent Hughes, General Manager International and Federal Operations, will discuss the matter with the Secretary General of Interpol, Mr Ron Noble, during his attendance at the Asian Regional meeting in Bangkok on 20-22 February 2001. I understand Mr Noble is attending this meeting and I will speak to him personally prior to his attendance to provide him with an outline of the investigation and its outcomes.
I am aware that Federal Agent Eaton's general performance during his time at the General Secretariat is assessed by Interpol Directors as quite outstanding and he has certainly achieved a reputation for productivity, initiative and results. Despite this, the fundamental issue of personal and professional values is relevant to all AFP deployments and will need to be seriously assessed in light of the views of the Secretary General.
One slightly militating factor is that, on the evidence presently available, all communications other that the last exchange on 13 November 2000 were only sent to Federal Agent White who is known to be a personal friend of Federal Agent Eaton. The three photographs sent on 13 November were sent to three people including Federal Agent White, a work colleague at Interpol and the work colleague's brother, who apparently Federal Agent Eaton admitted he had never met. Federal Agent Eaton accepted his culpability in regard to these photographs during his interview and deeply regretted that he may have brought the AFP into disrepute. It is clear though from the interview that Federal Agent Eaton had to have his memory prompted on several occasions before this position was reached.
As someone who personally supported his application for the position with Interpol, I find it difficult to justify in any sense why the communications would have occurred in the first place. In his position as the General Secretariat Federal Agent Eaton is an ambassador, not only for the AFP but also for Australia.
The AFP values that we promote so strongly are never more important than when our people are operating offshore. The unquestionable breach of these values raises a presumption of unsuitability for employment. This presumption could only be overturned by an overwhelming vote of confidence from the Secretary General and our satisfaction that there was no possibility that such conduct would re-occur. [emphasis added]
I have briefed Federal Agent Andy Hughes, General Manager International and Federal Operations to raise the matter at the Asian Regional meeting and have determined that a final decision on penalty for Federal Agent Eaton be deferred until the outcome of that process is known and has been considered. [emphasis added]
33 In his affidavit sworn 9 August 2001 Mr Overland stated the following about that minute and surrounding communications:
... The then Commissioner further informed me that a final decision on penalty for the applicant was to be deferred until a number of things occurred, including the GMIFO briefing and obtaining the views of the Secretary-General of Interpol at the then upcoming Asian Regional meeting. A copy of the then Commissioner's Minute is the annexure marked `A' to the applicant's first affidavit.
34 Mr Overland was cross-examined about how he viewed Mr Palmer's views. He said:
Q. So it was abundantly clear to you that so far as Commissioner Palmer was concerned, all that was involved now, as at 29 January, was the question of penalty?A. The Commissioner, as I understand it, was recording his views of this matter.
Q. All that was left, in his mind, was the question of the appropriate penalty?
A. Well, you would have to ask him that?
Q. Well, that is what it says, is it not?
His Honour:
Well, that is a fair enough answer, I think, Mr Purnell. You are taking him to a document, you have taken him to it, and now you are asking him about the state of mind of another person, and he said to you that is what he has written. If you want his state of mind, then you should ask for it?
Mr Purnell
Q: Yes, well so far as you were concerned, that was the situation when you read this?-
A: No.
Q: You thought that it left open, did it, the final decision as to the appropriate penalty?
A: Well, look, I object to the use of the word penalty. I wouldn't characterise it as a penalty for a start. What I took this to be was an instruction to me to put in place a process so that a lawful decision could be made, which is what I then set about doing. [emphasis added]
35 The content of this last answer is to be contrasted with some later evidence given by Mr Overland in answer to a question which I asked him at the end of his cross-examination. As that later evidence revealed, (see [56] below), until early March, he accepted that Mr Palmer had decided the question of substantiation. Also, there was no evidence that at that time he had any difficulty with Mr Palmer's use of the word "penalty".
36 Mr Eaton did not see the memorandum of Mr Palmer until after commencement of these proceedings and the compulsory production of documents. This is the case with a number of documents to which I will refer. Unless I indicate that a document was provided to Mr Eaton prior to litigation commencing, it was not so provided.
37 On 13 February Mr Palmer sent a note to Mr Hughes (GMIFO). He asked him to read the II brief before seeing Mr Noble, the Secretary General of Interpol, so that he would be in a position to brief Mr Noble. He gave Mr Hughes a copy of his memorandum of 29 January ([32] above). He said that he had deferred a decision on penalty until the views of the Secretary General were known. He asked him to report back to him on his return.
38 On 13 February Mr Palmer contacted Mr Noble by telephone and outlined the scope and nature of the investigation into Mr Eaton's conduct. The file note created by Mr Palmer of the conversation was in the following terms:
Mr Noble made it clear that he viewed the communication of pornographic material on Interpol systems as a serious breach of the standards he would demand of Interpol employed staff. He agreed with my proposition that he be briefed personally on the outcomes of the investigation by Federal Agent Andy Hughes during the Asian Regional Conference in Bangkok between 20 and 22 February 2001, and he sought my agreement that he not initiate any action within the General Secretariat of Interpol until such time as that briefing had occurred. [emphasis added]I made it clear that from an AFP perspective the communications were seen as a serious breach of expected standards and raised significant concerns regarding suitability. I explained that I intended to make a final decision on the matter immediately after I had received feedback from Federal Agent Hughes on the Bangkok discussions, but that I would take account of Mr Noble's views in making my decision. I also undertook to speak personally to Mr Noble before announcing or communicating any decision in order to ensure that such action did not prejudice any separate investigation or action he may wish to take within the General Secretariat. [emphasis added]
39 Plainly Mr Noble's views were very important to Mr Palmer in assessing the appropriate consequences for what he saw as a serious breach of expected standards affecting Mr Eaton's very suitability for employment.
40 On 14 February 2001 Mr Wood, the Director of Professional Standards (DPRS) directed a copy of Ms Beck's 5 January report to Mr Overland as COO. Mr Wood wrote (by hand) at the top of the report the following (in so far as the handwriting can be made out):
I have formally endorsed the substantiated finding against F/Agts Eaton and White. I now refer the matter to you ... consideration re employment suitability (Eaton) and White's suitability for promotion to SES position. The members need to be formally advised of the [outcome].
41 No complaint is made in respect of the failure to provide Mr Wood's views to Mr Eaton.
42 In his affidavit of 9 August 2001 Mr Overland said that on or about 14 February 2001 he was informed by Mr Palmer that he (Mr Palmer) had contacted Mr Noble and outlined the nature of the investigation and that in this conversation Mr Noble had made it clear that he (Mr Noble) viewed communication of pornographic material on Interpol systems as a serious breach of the standards he expected of Interpol employees and that he agreed to be briefed on the outcome of any investigation by Mr Hughes the GMIFO. This was clearly a view expressed by Mr Noble about the conduct of Mr Eaton. (The significance of this phrase will become evident in due course.)
43 On 23 February 2001 Mr Hughes prepared a minute for Mr Palmer reporting on his discussions with Mr Noble regarding Mr Eaton that had taken place in Bangkok in the preceding days. The minute was sent to Mr Palmer, Mr Keelty and Mr Overland. The minute contained the following:
Mr Noble expressed his concerns regarding what he perceives as a delay in notifying him that F/A Eaton was under internal investigation. He is aware that F/A Eaton was interviewed in mid December 2000 and that he (Noble) was not informed until February 2001. Initially he was of the view that F/A Eaton should have either advised him personally, or his Director, Mr Cameron Waller. I informed Mr Noble that F/A Eaton would have been prohibited from doing so because of the statutory requirement not to divulge that an internal investigation was taking place. Mr Noble thought that this created a potential dilemma for Interpol, with officers from 30 countries either seconded or detached to the General Secretariat, if they are still bound by the rules and regulations of their home jurisdictions, and which may conflict with internal Interpol guidelines or policies. In any event, he believes that F/A Eaton should have either contacted him and suggested that he speak to you about a confidential matter, without disclosing and details of the matter, or that he should have contacted you suggesting you speak with Mr Noble. He is amazed that Mr Eaton's demeanour did not offer any hint that this investigation was proceeding. There were no outward signs of any duress. [emphasis added]Mr Noble does not consider that Interpol should become involved in determining any penalty that might be applied in this matter. Interpol does not have any policy or guidelines in respect of inappropriate use of Interpol IT facilities. He has received legal advice to the effect that there would only be a 50% chance of satisfying the dismissal rules of France in this case. He further stated that this case has given rise to the recognition of a policy vacuum within Interpol, which should be addressed. He has stated to employees at the General Secretariat that he will tolerate one honest mistake.
Prior to the matters under investigation becoming known, there was no question of F/A Eaton's ability to competently carry out his role in Interpol. Mr Noble stated however, that had he known earlier that F/A Eaton was under investigation for these matters he would have taken the responsibility for coordinating the Asia Region Conference from him. He has also had recent discussions with F/A Eaton over child pornography and Interpol's role in combating this crime. I pointed out to him that the images sent by F/A Eaton to the Interpol IT system were not in any way related to child pornography. Nevertheless, I gained the very strong sense that Mr Noble feels that he has been compromised by the time taken to inform him of the investigation. [emphasis added]
Mr Noble does not believe that he can continue to employ F/A Eaton in Interpol. This is because he is firmly of the view that F/A Eaton should have come forward to him, as previously stated above. In Mr Noble's mind, the failure of F/A Eaton to alert him to the investigation, by whatever means, has given rise to a question of his loyalty to him. This seems to be the driver behind his decision to discontinue with F/A Eaton's employment with the General Secretariat. There was no time frame set or discussed.
[emphasis added]
Mr Noble states that the repatriation of F/A Eaton to Australia must be AFP instigated. He suggests that this can best be put forward as being,
* An internal AFP matter;
* Appropriate action is being by AFP;
* No requirement for Interpol to take any independent action.
[emphasis added]
Any arrangements should also include a requirement that F/A Eaton provide full and frank disclosure to Interpol of the manner in which he has used their IT or other communication systems, including any other like incidents.
Over the course of the Conference in Bangkok I participated in 3 separate conversations with Mr Noble over this matter. Initially he expressed the view that he was inclined to leniency. His adviser, Mr Stanley Morris, approached me separately. It was clear that he had a stronger view about what action should be taken by Interpol. I suspect that he was influential in Mr Noble's final decision to discontinue F/A Eaton's employment with the General Secretariat. I gained the impression that Mr Noble has informed Mr Cameron Waller about this matter. I did not discuss it with anyone other than Mr Noble and Mr Morris.
In summary, there are no internal policies or guidelines in Interpol covering the inappropriate use of IT systems. I have the strong sense that Mr Noble feels that he has been compromised by the perceived delay in notifying him. He is of the view that F/A Eaton should have made some attempt to make him aware that he was under investigation for matters that impacted upon Interpol. Mr Noble perceives F/A Eaton's failure to make him aware of the matter amounts to an act of disloyalty and he can no longer continue with his employment at the General Secretariat. Mr Noble asks that his removal be instigated by the AFP.
[all emphasis added]
44 In this document Mr Noble's concerns seem to be more directed to not being told by Mr Eaton about the investigation rather than his views on the quality of his conduct which was under investigation.
45 On 26 February Mr Palmer discussed the matter with Mr Hughes and later that day telephoned Mr Noble to confirm Mr Hughes' understanding of Mr Noble's position. Mr Palmer's minute recording the content of that telephone discussion is dated February 2001. It is addressed to Mr Overland as COO. Mr Overland says that received it some time late in February or early March. The minute was also addressed to Mr Keelty as DC (Deputy Commissioner). The minute stated that Mr Palmer's conversation with Mr Noble confirmed in his mind what had been outlined by Mr Hughes in his minute of 23 February about Mr Noble's views and position on the matter. The minute contained the following:
My conversation with Mr Noble confirmed the position outlined by Federal Agent Hughes. Essentially Mr Noble emphasised the following points:* the matter was an internal AFP issue and the determination of appropriate action (apart from the issue of deployment to Interpol), was a matter for the AFP;
* it was not intended that Interpol take any independent action in regard to Federal Agent Eaton, although Mr Noble would initiate an investigation into the use of Interpol systems by other members of the General Secretariat. There was a policy vacuum within Interpol which needed to be rectified to allow appropriate response to issues of this nature. At the present time it would not be possible, even on matters of substance, for Interpol to take strong deliberative action;
* Mr Noble was thankful that the AFP had advised him of the fact of the investigation but was disappointed that Federal Agent Eaton had not brought the matter to the attention of his Director or himself. Mr Noble saw this a fundamental breach of trust; and
* Mr Noble believed it was not appropriate for the deployment of Federal Agent Eaton to the General Secretariat to continue.
[emphasis added]
I explained that it was our intention to end Federal Agent Eaton's deployment and to return him to Australia at the first reasonable opportunity. Mr Noble said he was comfortable with those arrangements being made to coincide with the end of the French school year. These arrangements were agreed on the basis that Federal Agent Eaton be required to provide a full and frank disclosure to a member/s of the Interpol General Secretariat staff, to be nominated by the Secretary General, of the manner in which he has used their IT or other communication systems, the people to whom he has communicated and other relevant facts. I agreed this direction would be given.
[emphasis added]
I would appreciate you liaising with Federal Agent Hughes in his capacity as GMIFO to arrange the end of Federal Agent Eaton's deployment in line with the above timeframe, and concurrently commencing a show-cause examination to determine Federal Agent Eaton's continued suitability for employment.
[emphasis added]
The direction to Federal Agent Eaton to assist any Interpol inquiry should be given expeditiously as the results of that inquiry may assist in final determination in regard to his continued employment.
[emphasis added]
As regards the matter of continued suitability, I think it appropriate to raise a number of factors which will be relevant to any final decision as clearly this decision will be made following my retirement:
* despite the obvious seriousness of the identified behaviour, the actions were not ones of dishonesty or wider criminality but rather actions of poor judgment and questionable values;
* the communications were essentially private communications to personal friends or work colleagues;
* the overall performance of Federal Agent Eaton at the General Secretariat has been, in the opinions of the Directors (and indeed the Secretary General), quite outstanding. The recent performance report from his Director and the opinion of GMIFO on Federal Agent Eaton's performance in the conduct of the recent Asian Regional Conference, reflects these views; and
* the whole of career contributions made by Federal Agent Eaton.
In making these points I do not under-value the fundamental importance of personal values and professional standards to the AFP, and clearly a final determination on this matter will depend upon not only the outcome of the Interpol inquiry but also the nature and content of any explanation and response provided by Federal Agent Eaton.
46 Whatever may have been the foundation for his view, Mr Noble plainly wanted Mr Eaton returned to Australia. Mr Palmer's views were strong and clearly expressed. For him Mr Noble's views were of great relevance as to future employment. For Mr Palmer the substantiation of the matter was clear and Mr Eaton was to return from France. The show cause procedure was to be conducted in relation to "continued suitability for employment".
47 I should add at this point that in his affidavit of 9 August 2001 Mr Overland stated:
... At all material times I have considered that the former Commissioner's views [Mr Palmer's views] were not binding upon me and that I was obliged to reach my own independent view about the matters raised. This I proceeded to do. [emphasis added]
48 Again, this evidence is in some contrast to the evidence ([56] below) given by Mr Overland in answer to a question from me at the conclusion of his cross-examination where he said that until he received some legal advice he was implementing the views of Mr Palmer.
49 On 4 March 2001, by way of a handwritten note on a copy of the undated February minute of Mr Palmer in relation to his 26 February conversation with Mr Noble, Mr Overland requested Mr Wood as DPRS to
progress the show-cause notice as discussed, which will need to include three issues (1) show cause re employment (2) show cause re return to Australia (3) direction to co-operate with Interpol in an internal enquiry into email internet useage.
50 It should be noted that Mr Overland extended the show cause procedure to the question of return to Australia. Mr Palmer's note directed Mr Eaton's return to Australia and a show cause procedure as to his continued suitability for employment. Plainly from Mr Palmer's minute, Mr Noble's views were relevant to the question of removal from Lyon.
51 In cross-examination Mr Overland described his notation to Mr Wood as "part of the process of dealing with the substantiation of the allegation". I understood and understand Mr Overland in this answer to have been saying that (at least as far as he was concerned) there had been no substantiation of the allegation. This was said in the context of Mr Overland resisting the proposition put to him that the matter had been resolved by way of substantiation and only "penalty" (a term not favoured in cross-examination by Overland) remained to be decided. Later in cross-examination Mr Overland agreed with the proposition that it was nonsense to have a show cause re employment and re return to Australia unless and until the allegation was substantiated. Ultimately Mr Overland did agree that he understood substantiation was complete (for Mr Palmer) on 13 February and for him on 4 March. Plainly this was so, as elucidated with some clarity by Mr Overland in his answer after cross-examination ([56] below). The position adopted by Mr Overland first referred to in this paragraph did him little credit; at best it was carefully ambiguous.
52 While Mr Overland at times seemed to struggle with the matter, I think it is clear, and I find, that in writing the note to Mr Wood he was carrying out and was intending to carry out Mr Palmer's direction in the February memorandum set out in [45] above and at this stage he was taking into account the contents of Mr Palmer's direction in how he was dealing with the matter. During cross-examination he did accept that he was "implementing Mr Palmer's recommendation". At a later point in the cross-examination, at a point of vigorous debate, he denied he was implementing it. I reject that evidence. That he was implementing Mr Palmer's views was finally made clear in the answer given to a question asked by me at the end of his cross-examination (see [56] below).
53 In his affidavit of 9 August 2001 Mr Overland also said the following about his handwritten note on Mr Palmer's minute:
In requesting that DPRS [Mr Wood] take the action referred to in the above paragraph, I considered that certain steps needed to occur before decisions were made in order to afford the applicant procedural fairness. I recall that in the fortnight or so between my receipt of Commissioner Palmer's correspondence at annexure D [being Mr Palmer's February note] and his retirement from the AFP on 14 March 2001, I did not have the opportunity to brief him on the steps I was taking or to further discuss the matter with him owing to his heavy work commitments. Before requesting DPRS [Mr Wood] to take the above action I also considered whether any discipline action should be taken against the applicant, by referring the matter to a delegate to consider whether the applicant should be charged with a discipline offence under the AFP Discipline Regulations. I decided not to take discipline action against the applicant, and at no time have I taken any discipline action against the applicant.
54 On 7 March 2001 Mr Eaton had a conversation with Mr Hughes concerning the disclosure to Interpol of the II investigation. Apparently pursuant to this, on 8 March Mr Eaton emailed Mr Noble informing him of the AFP investigation and of the imminence of a show cause procedure against him. In the email he said that he had been unable to disclose anything earlier because of security provisions in Australian legislation.
55 At the end of his cross-examination by Mr Purnell I asked Mr Overland this question:
Mr Overland, at the time you were sending the memorandum, the show cause notice as it has been described on 21 May, why did you not consider it appropriate to give Mr Eaton notice of the Secretary-General's views as you then understood them?
56 After some exchanges which indicated that he needed to put the answer to this question in a little more context he gave a long answer waiving legal professional privilege (consciously so, after I raised it, and in a manner which indicated to me that some thought had been given to the matter) in the following terms:
I am content to give the privilege up your Honour. It related to an issue that we'd been aware of for a little while that had arisen in a number of other matters of this nature about the appropriateness of the process that we had conducted in terms of whether we actually needed to ask people to show cause on the question - or to address the issue of substantiation before we made a decision. Now, that had been a debate that we had had for I think a month or so, six weeks or so, leading up to this. There was some other matters [sic] taking place. We received some external advice on that question in relation to another matter and in that conversation, we decided that we did actually need to institute another step in the process which was to give people an opportunity to be heard on the question of substantiation. That is what happened in my minute of 9 March. That marks a turning point in the way that I was dealing with this matter. Up until that point, I was implementing the directions of Commissioner Palmer. From that date on, based on my discussions with counsel and the independent advice we'd received, I believed that the process was flawed and that we needed to address that. Now, in addressing that, I always had difficulties with the reliance on Noble's views in terms of the AFP reaching a decision about an AFP investigation, but from that date on, I thought that the views of Noble and Palmer, as expressed in the correspondence that we've gone through, became particularly problematic in terms of affording Mr Eaton natural justice. I considered whether we could afford Mr Eaton natural justice by putting those matters to him and having him reply. I didn't think that was appropriate. I believed the best way to proceed was to simply exclude those matters from my mind in the decision-making process. Now, whilst I realise that is to a degree an artificial process, in a sense, that is what frequently happens to my knowledge in decisions of this nature. So, I proceeded from that point forward, trying to exclude from my mind in the decision-making process the views that had been expressed by Commissioner Palmer and by Secretary-General Noble, leading up to - well, covered in the events that have been described in the various documents that we've been through over the last couple of days. In relation to the particular show cause notice that you referred to, again, I thought that this was now a separate decision that needed to be made, ie, was Eaton recalled from Interpol. Again, I had real difficulties using the conclusions that Noble had reached and I can say more about that because I thought there were all sorts of problems with Noble's reasonings. For instance, it seemed to me that one of his key concerns was the fact that Eaton hadn't told him about the investigation. Now, I didn't think that was fair. Eaton was effectively prevented from doing that. If you have a look at what Noble says, he also indicates that his concern is about the passage of this sort of material over Interpol systems and again, that was problematic for me in terms of dealing with a breach of AFP computer systems.I think it is common ground amongst the parties, and please, they will tell me if it is not, that the only material sent over the Interpol system was the - what is it called, Bad Boy Bubby, or Text Only, the email number 2, I think? --- And email number 5 also went over into the Interpol system as well.
Thank you? --- They were the only two cases. So, I had difficulty with Noble's views all along. My view of - I mean, I thought those or his views became very problematic after 8 March and so sought to exclude them. In terms of the notice on 21 May, there was an issue there in terms of reputation and in terms of, from Interpol's perspective, whether this arrangement was going to be workable. I thought that, again it was a matter of trying to separate Nobles views on matters of conduct and to look at the relationship itself, I guess, and to see whether the relationship could continue to be workable should a decision be made to leave Mr Eaton in place.
[all emphasis added]
57 This was the matter which at the end of the previous afternoon had almost come out in answer to a question I asked (see [88] below). Mr Purnell did not take it up directly in his cross-examination. It was not in Mr Overland's affidavit. I do find it surprising that evidence was given by Mr Overland in the terms set out in [34], [47] and [51] above when the above reflected the existence of a clear change of approach. I think it explains a lot about how the process in which Mr Overland was involved was carried out. I also think that its late disclosure, otherwise than in his affidavit served in advance of the hearing, reflects an unwillingness to do more than was necessary at any given time to propound his position in the litigation.
58 After he gave the above evidence the following sharp exchange took place between Mr Purnell SC and Mr Overland:
Q. You had never communicated any of the matters that you've just put to his Honour in response to that question, in any document on the internal investigation files of either White or Eaton, did you?A. No, but you can see that there was a marked change in the conduct of the matter from 9 March .
Q. And that's not in your affidavit that you have had settled with the assistance of counsel?
A. Yes, it's not.
Q. No. And it only comes in answer to a question from his Honour?
A. Well. Mr Purnell, you didn't give me an opportunity to actually provide that answer - rather skilfully, I thought.
59 Mr Overland was then cross-examined about the substance of the legal advice which he received. He said:
A. It only related to Eaton but I think to put it in its proper context, we had had a number of conversations in the weeks leading up to 8 March about the issue of substantiation and I knew that the legal area were doing some work on that issue both in house and in terms of seeking advice in relation to some other matters. Mike rang me on the 8th because he was concerned that we were about to embark on a course that was procedurally flawed and he wanted to discuss that with me.Q. And what was the advice that he gave you in relation to Eaton?
A. Well, his advice was that he felt that we were at a stage where we needed to provide the affected party with the right to be heard before we substantiated findings in relation to allegations or complaints.
...
A. That's a summation of the advice. It was a five or 10 minute telephone conversation. I might add I was in Perth at the time.
60 After the legal advice from the internal lawyer (which was based on counsel's advice) Mr Overland told the internal lawyer:
...that I felt that we did need to provide an opportunity to be heard on the question of substantiation and that he should have the - have the document - the draft document amended to reflect that. That's the minute of 9 March.
61 These proceedings have at all times concerned the issue as to whether procedural fairness was accorded to Mr Eaton. Once documents reflecting the views of Mr Palmer and Mr Noble became known to Mr Eaton by compulsory disclosure in the litigation their existence and prior non-disclosure became part of the fabric of those allegations. I would have thought that evidence of the kind in [56] above defining, as it does, the structure of the handling of the matter by Mr Overland would have been put forward openly in his affidavit as central to a consideration of his conduct which was under attack. This is particularly so when the time period in which this change of approach occurred was the subject of evidence, albeit of an opaque and anodyne kind, for example, [34], [47] and [51] above. Notwithstanding the above, I accept that Mr Overland in early March, after receiving advice, recognised the need to accord Mr Eaton procedural fairness about the question of substantiation. I also accept that what he thought he could do by way of application of what he understood the rules of procedural fairness to involve was simply to attempt to exclude Mr Palmer's views and Mr Noble's views from his mind in the decision making process. It is necessary however to appreciate the significance of Mr Noble's views which becomes apparent later in these reasons.
62 The fact that Mr Overland didn't say this clearly in chief is, as I said, surprising. I think it is partly explained by his approach referred to in [57] above and also, I think, by the fact that he had a view of the requirements of procedural fairness which was mechanical and formalistic. The artificiality and unreality of excluding from his consideration the strongly expressed views of the then Commissioner and of the Secretary General of Interpol, whatever their flaws, in particular when he had been dutifully implementing the former (which relied in part on the latter) is highlighted by Mr Overland's conduct in May, to which I will come.
63 On 9 March Mr Overland wrote to Mr Eaton a letter which was received by Mr Eaton on the same day. The letter stated the following:
As you are aware Professional Standards has been investigating an allegation relating to your involvement in the misuse of the AFP computer system in breach of the AFP National Guideline for the use of electronic mail. The investigation considered an allegation that you had been a party to the inappropriate use of the email system contrary to the `AFP National Guideline for the Use of Electronic Mail' of 14 July 1999. The investigation concluded that that allegation was substantiated.The consequences of my accepting that the allegation is substantiated is that I will consider whether the material gathered during the internal investigation has any impact on your continuing to perform duties as the AFP's SLO to Interpol in Lyon as well as your suitability to remain as an employee of the AFP. Therefore, I would like to hear anything you might want to put to me as to why I should not accept the conclusions of the internal investigator that the allegation is substantiated.
Background to the internal investigation
In November 2000, AFP IT Security intercepted an email with an attachment from you addressed to Federal Agent Peter White's email address. An examination of the attachment showed it contained three pictures, all of which allegedly breach the AFP's policy regarding the appropriate use of email. Two of the pictures are capable of causing extreme offence and are pornographic. Interception of this email by IT Security prevented it from reaching Federal Agent White's AFP email address.
As a consequence this interception, it was decided to audit Federal Agent White's email usage of the preceding six months. This audit discovered three emails with attachments of questionable content, two of which allegedly breach AFP policy. The most serious alleged breach was an email message forwarded by you to Federal Agent White's email address and received on 16 October 2000 that had attached a Powerpoint file titled `Baywatch Wicked Weasel'. You forwarded the other email to Federal Agent White on 1 August 2000 and it had attached a number of cartoons that were inappropriate for transmission on the AFP's email system.
Organisational concerns concerning inappropriate emails
Inappropriate use of AFP computer systems is of serious concern to the AFP, given the potential for this type of activity to impact negatively on the organisation and individual employees. The AFP has a clear policy relating to the appropriate use of email and advises all staff that email usage is closely monitored. In recent times, action has been taken over a number of breaches, of the AFP's email and internet policy, including the termination of appointment of employees.
Time for response
If you wish to take this opportunity to address me on any matters set out above then you should provide a written response to be received by me no later than close of business on Wednesday 21 March 2001 (Canberra time). In the event I have not received your response by that time, I will give this matter further consideration.
Direction to cooperate
In addition to these matters, I have been informed that an investigation is to be undertaken by the Interpol General Secretariat in relation to email and internet usage within Interpol. Therefore, I am directing you to cooperate by fully and truthfully answering questions that my be asked of you, and by producing documents that you may be asked to produce in the course of that investigation by members of the Interpol General Secretariat staff, as nominated by the Secretary-General of Interpol, concerning the manner in which you have used Interpol's Information Technology or other communication systems, the people with whom you have had communication, by using those systems and any other matters relating to that investigation.
If you have any questions regarding this matter, please contact me on [number provided].
64 On 9 March Mr Eaton emailed Mr Overland requesting an extension of time in which to avail himself of the opportunity to respond. Mr Eaton wrote:
I thank you for the opportunity your notice affords me to respond to the II finding and your consideration as to its substantiation. I confirm that I am, at least in the first instance, to respond to the finding of the II investigation, and not to the forecast consequences you may have to consider.
65 In this email Mr Eaton requested a copy of the II report (of 5 January) on the allegations and the transcript of the interview. He said that he was very concerned that Mr Noble had expressed grave concern about not being told earlier about the matter. Mr Eaton also asked whether there were any other documents he should have.
66 Mr Keelty, who had been Deputy Commissioner of the AFP, became the Acting Commissioner on 14 March 2001, upon Mr Palmer's retirement from that post. He was Acting Commissioner until 2 April when he became the Commissioner.
67 On or shortly after Mr Keelty became Acting Commissioner, Mr Overland provided a briefing to him on this matter along with other issues. In his affidavit of 9 August 2001 Mr Overland stated the following:
... This was one of many issues that were discussed as part of his induction into his new role. I informed Acting Commissioner Keelty of the views of the previous Commissioner and that I considered the applicant ought properly be given an opportunity to be heard before any action was taken consequent upon the outcome of the internal investigation. Commissioner Keelty advised me that as delegate I should continue dealing with the matter concerning the applicant as well as a related matter concerning another AFP employee, Federal Agent White. ...
68 Interpol produced a report on 16 March (produced by a Mr Cameron-Waller) in relation to Mr Eaton's disclosure of the investigation to Mr Noble. The report was addressed to Mr Noble. Mr Cameron-Waller had spoken to Mr Eaton about the matter on 9 March. The report dealt with the status of the AFP investigation and the failure of Mr Eaton to disclose the investigation to Interpol. The report set out three options for action by Mr Noble: (1) initiating a disciplinary enquiry within Interpol; (2) terminating Mr Eaton's detachment pursuant to the Interpol Staff Regulations; or (3) giving him suitable advice. The report stated that Interpol had not been harmed and with the possible exception of an article of the Staff Regulations, there had not been a breach of any rule. Mr Cameron-Waller made the following recommendations:
ProposalsFollowing consultation with Mr Gadeceau, I propose that you write to the AFP stating that, pursuant to an instruction he received from the AFP, Mr Eaton has disclosed the current disciplinary enquiry into his use of the AFP e-mail facilities. The letter could state that:
* Mr Eaton gave what we took to be a full and forthright explanation;
* you are disappointed to learn of these incidents by an official who has rendered and continues to render outstanding service to Interpol;
* after careful examination of the circumstances you do not intend to initiate separate disciplinary proceedings arising from what are essentially the facts already under investigation by the AFP;
* his disclosure has been noted on his personal recorded;
* you are content to accept the eventual findings and decision of the AFP with regard to him continuing to serve at the General Secretariat;
* you reserve the right of taking disciplinary measures in the light of the final outcome of the AFP enquiry.
69 On 19 March 2001, Mr Eaton received an email from Mr Wood attaching a final copy of Ms Beck's report of 5 January. The email said:
Chris,Please find attached a copy of the Final Report in relation to the allegation involving inappropriate use of the Groupwise system. Due to the nature of the material involved, I have not included a copy the messages that are the subject of the internal investigation.
However, if you believe that it is imperative that you have access to this material, please advise me and I will see what arrangements can be made to have the graphics forwarded by secure means.
70 On 20 March in a message sent by email Mr Overland acceded to Mr Eaton's request made on 9 March ([64] above) for an extension of time. The email contained the following:
There is no problem with an extension of time. I have arranged for the Professional Standards final report and a transcript of your interview to be forwarded. If you wish to see copies of the e-mail material please let me know. This is all the information we are able to provide that is relevant to your reply. If you need a further time extension please let me know.I understand your difficulty with the Secretary General. Unfortunately this is unchartered territory for all. I accept that the secrecy provisions prevented you from speaking with the Secretary General or other senior Interpol officers and, if need be, I am happy to explain that to the Secretary. It was open to you to raise this as an issue if you felt the need to communicate this information to a senior Interpol officer.
From the AFP's perspective, discussions were held with the Secretary General. The timing of these discussions was determined by the PS investigation. When it was believed that there were substantive issues to be addressed a decision was made at Commissioner level to brief the Secretary General. In the Commissioner's view it was not appropriate to brief until the investigation was sufficiently advanced to be able to determine whether there were issues of substance. I do not think I can go into more detail about the discussions with the Secretary General as they are matters between the Commissioner and the Secretary General.
I urge you to provide full and frank co-operation with any action initiated by the Secretary General.
I hope this reply addresses the questions you have asked.
[emphasis added]
71 The email is only accurate (and so not misleading) if it can be said that Mr Palmer's views were not relevant to Mr Eaton's reply.
72 I assume that the "Professional Standards final report" was Ms Beck's report of 5 January 2001 which had been submitted to Mr Wood.
73 It should be noted that Mr Eaton was told in this email ([70] above) that Mr Noble had been spoken to. Mr Eaton was not told of the views of Mr Palmer or Mr Noble (as expressed to the AFP). He was not told that Mr Palmer thought the matter to be clearly substantiated and that he had directed that Mr Eaton be returned from Lyon and that Mr Noble thought that he should be returned.
74 On 25 or 26 March Mr Eaton sent Mr Overland a submission in response to the II finding and report, intended to assist Mr Overland's consideration of the II finding. Mr Eaton stated that he did not, other than indirectly, address the potential consequences which he saw to have been forecast in Mr Overland's minute of 9 March. Mr Eaton's response included the following:
I note that this is the first time since the II interview that I have had an opportunity to respond and that this is the beginning of due process in the complaints substantiation or revocation machinery. I also note that I am at somewhat of a disadvantage in France, with no face to face contact with AFP colleagues or Australian legal advice.
75 The submission was three and a half typed pages. In it Mr Eaton stated that the telephone interview had its difficulties for him, though he affirmed his truthfulness. He stated that this was the first time he had had the opportunity to respond. He said he thought the report wrong in law and fact. He strongly asserted his veracity and that the emails had been sent to Mr White's AFP address accidentally. He described Ms Beck's report as an over-reaction. He dealt with the emails, their private nature, the fact that they were meant to be humorous, his carelessness in not checking the address and other matters which he saw as relevant. As to the sending of the email to the Interpol address of the Italian colleague (which was deliberate) he said:
The email forwarded from my home to the single Interpol address should be judged against the Interpol and French environments in which I live and work. I accept that this incident was an appalling lack of judgement on my part. But it is an isolated event, heavily regretted by me, and not an example of a cavalier approach to emailing as FA Beck concludes on the flimsiest of evidence.
76 He concluded by saying:
Throughout my career I have placed AFP integrity and internal and external confidence in it at the highest in my thoughts and actions. I have foregone personal opportunities for what I saw as the higher ideal of AFP standing, based on my personal conviction that the organisation is bigger than the individual. My loyalty in this regard is well recognised.As expressed during my interview, I sincerely regret that these matters have come to your attention. My use of private email is now only used with extreme caution. I do not use it at all for the type of emailing that was subject of this enquiry. I ask you to accept that this is firstly a series of honest mistakes, and compounded by one isolated incident that is completely at odds with my professional history and commitment.
77 Mr Overland received the letter on the same day, and by email acknowledged receiving it and told Mr Eaton that he would proceed to consider it along with other relevant material. He said "this will take me a little time to do but I will get back to you as soon as possible."
78 Approximately a month later, on 27 April 2001, Mr Eaton had a telephone conversation with a Mr Torr, whose title was "Team Leader, Employment Standards". Mr Eaton made a note of the conversation. Mr Torr was not called to give evidence. That note records Mr Torr telling him that it was his (Mr Torr's) task to put all the information together so as to allow Mr Overland to make a decision and that although he (Mr Torr) did not know for certain what Mr Overland would decide or even whether he would discuss this with Mr Keelty, in Mr Torr's view Mr Eaton should prepare himself for the likely decision that they would withdraw him from France and return him to Australia as a consequence of the substantiation of the II finding. Mr Torr said that this was a likely outcome of his recommendations to Mr Overland. The note stated that Mr Torr said that he would have a report by the end of April or the beginning of May and that should he decide to recommend a recall from France, Mr Eaton would be given an opportunity to respond before the decision was finally taken. Mr Torr said that it was a real possibility that Mr Eaton's service would be terminated, but only after a first decision as to whether he would be recalled or not. Mr Torr expressed the view that it was a matter of deployment and thus not open to challenge. He counselled Mr Eaton on his options.
79 Meanwhile, some time after Mr Overland received Mr Eaton's submission, Mr Overland had a discussion with Mr Wood in which he says it was agreed that in view of the concerns raised by Mr Eaton in his response regarding the investigation process, a review of the investigation should be conducted. That review was carried out by a Ms Hudson of the AFP and is dated 30 March 2001. It was an 11 page report and addressed to Mr Wood (as DPRS). The conclusion expressed by Ms Hudson was that there was no reason why the II substantiated finding should be viewed as wrong in fact and law as asserted by Mr Eaton. She concluded that the allegation that Mr Eaton was party to the inappropriate use of the AFP email system should remain substantiated. Prior to the litigation, this document was never provided to Mr Eaton. No complaint is made in the application about the failure to be provided with this document.
80 On 14 May 2001 Mr Noble wrote to Mr Keelty. The letter was received by mail by Mr Overland on 24 May but he received a copy of it from Mr Keelty by fax prior to 17 May, the date on which he responded to the letter. Mr Overland said that he received it on 14 May. Mr Noble's letter was in the following terms:
I am writing to you regarding a confidential matter concerning an Australian Federal Police (AFP) federal agent currently assigned to the Interpol General Secretariat in Lyon, France. A recent set of events has surfaced the fact that we have not received any information about your internal investigation of this federal agent.Our understanding is that this investigation was initiated over six months ago. The focus of your inquiry was misuse of the AFP internal computer systems. While there were indications that similar misuse was made of Interpol's systems, we deferred to the AFP and did not undertake a separate inquiry.
As you know, your original inquiry was undertaken in the strictest of confidence without even notifying Interpol as to its existence. In addition, the federal agent in question was interviewed by telephone without Interpol's knowledge. It is our understanding that the AFP prohibited the subject from informing his Interpol supervisors of the facts of this inquiry until February, even though his detachment proscribes him from accepting instruction from any national authority.
Needless to say, having a detached employee under investigation by his home authority for suspicion of having violated internal rules that could lead to his dismissal has over the last six months put[s] the Interpol General Secretariat in an awkward situation. Because the federal agent is detached, we pay his salary and thus have stricter supervisory responsibilities than we might have for a seconded official. On the other hand, the AFP controls all aspects of its internal investigation, including requiring the official to comply with your directives.
Despite the length of the AFP's internal investigation, we have managed to keep this matter confidential. However, several days ago the federal agent in question received an e-mail that contained material similar to that for which he is being investigated. His immediately expressed concern was that he might be the subject of an effort by someone at the General Secretariat who wished to make it appear that he was still involved in improper activity. He did not suggest that it might simply be an example of others viewing him as a willing recipient of such material. He notified other recipients of this e-mail of his intention to inform authorities and thus deprived both Interpol and the AFP of employing full investigative techniques to investigate the matter. That is, without knowing whether the recipients were willing participants, he alerted them of his intention to report the matter to authorities. His response to this situation, publicly expressed to the AFP in an e-mail, suggests that the fact that the AFP inquiry has not been concluded may be affecting his job performance and judgment.
It is in our common interest to resolve this matter expeditiously. I encourage you to notify Interpol of your findings and to take the appropriate steps to address those findings. If the AFP has not yet completed its investigation, I would hope that you would consider whether it would not be desirable to recall this federal agent. The lengthy 6-month internal inquiry and the federal agent's fear that his professional career is at risk here at Interpol require the AFP's immediate attention. It is hoped that a mutual resolution of this matter by the AFP and Interpol would obviate the need of Interpol's conducting its own potentially duplicative disciplinary investigation.
[emphasis added]
81 I read the emboldened sentence as a statement by Mr Noble of his desire for the recall of Mr Eaton.
82 Also on 14 May, Mr Eaton was advised that Interpol was making preliminary investigations regarding the use of its communications systems on 8 May and whether Mr Eaton's work station had been used for inappropriate purposes. Mr Eaton was directed to work from home from that date, which he did until 28 May.
83 Mr Overland responded to Mr Noble's letter of 14 May by letter of 17 May, in the following terms:
I refer to your letter of 14 May 2001 to Commissioner Keelty concerning Federal Agent Christopher Eaton. Commissioner Keelty has asked me to respond on his behalf.I acknowledge the difficulties created by the Australian Federal Police's internal investigation into the conduct of Federal Agent Eaton and I apologise for that and the delay in resolving this matter. Unfortunately this has been an unusual investigation for a number of reasons and this has slowed our processes.
I have today written to Federal Agent Eaton advising him, inter alia, that I am considering recalling him from his Interpol position to a position based in Canberra. For legal reasons I am obliged to provide him an opportunity to put before me any issues he may wish me to consider before making a decision on this matter. I have given him seven days in which to respond before I proceed to make a decision.
I can assure you that your views in relation to the conduct subject of the internal investigation will be given very careful consideration in the decision making process. I will of course advise you of that decision once made. [Emphasis added]
...
84 There was a debate in cross-examination as to what Mr Overland was referring to by the phrase "your views in relation to the conduct subject of the internal investigation" in this letter. Mr Overland refused to accept that it referred other than to Mr Noble's desire to have the matter dealt with quickly. I do not accept this evidence of Mr Overland. He was aware of the then views of Mr Noble concerning the conduct the subject of the investigation. This included the views Mr Noble was said, by Mr Palmer in his file note of 13 February of their discussions, to have expressed that the communication of "pornographic" material on Interpol systems was a serious breach of standards and the view he expressed at least to Mr Hughes in Bangkok in late February, that he wanted Eaton recalled. It also included what is in Mr Noble's letter of 14 May, "If the AFP has not yet completed its investigation, I would hope that you would consider whether it would not be desirable to recall this federal agent." I think this evidence of Mr Overland reflects less than well on Mr Overland. It can most charitably be characterised as a punctilious attendance to any nuance which might be seen as available to neutralise material otherwise harmful to his own case. Less charitably, I detected in his evidence a steadfast refusal to concede anything harmful to him about what he recognised as material which contradicted the notion that he excluded Mr Noble's views from his own consideration.
85 In cross-examination Mr Overland said the following about the emboldened passage in [ 83] above:
Q. That is the words that are said?A. I was reassuring him that I had heard what he had had to say about needing to move forward and deal with this matter expeditiously, I was conscious of that and I was getting on to deal with it.
Q. And the expedition meaning to coincide with the end of the French School year?
A. No, the expedition meant to deal with the matter quickly so that we weren't left in an untenable situation.
86 Mr Purnell squarely put that this was a lie. I am reluctant so to characterise it. In addition to what I said above, I think it reflects a determination not to make concessions wherever the resistance to making them can somehow, possibly, be justified from the material. I think the words are plain in their context. Mr Overland was telling Mr Noble what he (Mr Overland) at that time intended: to take Mr Noble's views into account in the decision making process. This was not restricted to Mr Noble's views about expedition. That is indeed what paragraph 24 of his affidavit of 9 August 2001 says:
By letter of 17 May 2001 I responded to the letter from the Secretary-General referred to in the above paragraph. A true copy of my letter is annexed hereto and marked with the letter `F'. In that letter, amongst other things, I assured the Secretary-General that his views in relation to the conduct subject of the internal investigation would be given very careful consideration in the decision making process. [emphasis added]
87 The above does not affect the evidence which Mr Overland gave, which I accept, that he thought there were "all sorts of problems with Mr Noble's views." In one sense that was clear. Mr Noble's concerns seemed to be based to a significant degree (though not entirely) on the failure of Mr Eaton to inform him of the investigation.
88 In answer to questions asked by me (at the end of the afternoon prior to the evidence in [56] above) Mr Overland indicated a view which he said he held about the irrelevance of Mr Noble's views. He said:
Q. And in relation to the Secretary-General's views, did you ever have the view that his views were not relevant to be taken into account?A. Yes.
Q. Perhaps I should be more precise. Did you ever have the view that the Secretary General's views need not, or were not appropriate to be considered by you?
A. Yes, I did. I definitely had that view.
Q. When was that?
A. I was always troubled by ---
Q. Was it in relation - let me interrupt if I may - was it in relation to the question of not being told soon enough?--
A. That was part of it. My views changed after about 8 March.
Q. In what way?
A. I'm happy to answer that question, your Honour, but I think it's going into an area that we hitherto haven't explored.
Q. Very, well I withdraw the question. I won't ask anything more
Mr Purnell: I'm happy for the answer to come out, your Honour. I can proceed with it tomorrow.
His Honour: Well I think perhaps it is better that the parties deal with it. I was not seeking to explore other areas, so I will withdraw the question.
89 The invitation to the parties in the last exchange was not directly taken up. It led to my asking the question set out at [56] above the following afternoon.
90 Mr Overland's view was that he was only going to tell Mr Eaton of Mr Noble's views if Mr Eaton somehow made them relevant:
Q. So, what you were seeking to do by reference to paragraph 28 was to put the onus on Eaton to make Noble's involvement relevant"A. Well, I wouldn't put it that way, but if matters were raised with me in Mr Eaton's response relating to the Secretary-General then his views may have become relevant.
91 Mr Overland said that he had:
...excluded those matters from consideration in relation to the substantiation.
92 Mr Purnell challenged this as a lie. It was after cross-examination ended that these answers were put into their full context.
93 In fact, by apparent oversight, as at 17 May 2001 Mr Overland had not yet written to Mr Eaton. He did so on 21 May 2001, as to which see below.
94 Mr Eaton first saw this May correspondence between Mr Noble and Mr Overland on or about 14 June as part of compulsory disclosure in these proceedings.
95 On 20 May, Mr Eaton emailed Mr Overland to say that he had been informed by Mr Cameron-Waller that Mr Noble had received a letter from Mr Overland advising Mr Noble that he was shortly to send Mr Eaton a request to show cause why Mr Overland should not consider withdrawing Mr Eaton. Mr Eaton wrote:
...I assume you have forwarded any correspondence to me at the Interpol email address. Could I ask you to now redirect it to my home email address. I note that the correspondence from you I have been alerted to would be in effect only the third contact I have had from the AFP over this issue since my telephone interview by II in mid-December last year (other than related clarifying exchanges). This would be the second report from you, and I have had one telephone call from Federal Agent Torr around four weeks ago.
However let me point out several difficulties I will have in responding to what I understand is your request [that is the show cause request]:
1. All the email traffic between the AFP and me on the AFP inquiry is archived on my Interpol computer. I presently have no access whatsoever to that information, which will be necessary for me to refer to in responding to the request I understand you have made of me;
2. I have considerable professional reference material withi
nmy office which I would need to use in advancing my professional value to the AFP and Interpol. I currently have no access to that material;3. The Interpol inquiry, while unrelated to the AFP inquiry in the sense of my involvement, is related in the sense of at least two issues I raised and wish to expand on as mitigating factors in any response I make (misaddressing of emails and the Interpol email culture);
4. While I am not at work it will not be easy to contact a number a number of senior Interpol colleagues to seek personal endorsements from them to illustrate my reputation and work achievements at Interpol;
5. Given what I understand to be your request, and the grave implications this proposed action against me would have for me personally, my professional standing and the harmony and best-interests of my family, particularly the schooling interests of my teenage dependants, I need to give extremely careful consideration to my reply and my legal position;
6. While I am in France I do not have access to Australian legal advice on your proposed action, which I understand is based on the exercise of Australian administrative powers. In view of the grave implications I outlined in 4, I propose to seek Australian legal advice on my options in responding to your request. I seek you guidance on how I might be able to access Australian legal advice from my deployed position in France?
I wish to ask one question by way of background that you may wish to respond to when forwarding anything to me at my home email address - If you are now asking me to show cause why I should not be recalled from the Lyon post as a result your substantiation of the II finding concerning me, does that mean that you have made the administrative decision that the AFP email guidelines apply to my use of private email facilities and my unintentional misaddressing of them to an AFP email address?
96 Mr Overland replied to Mr Eaton by email on 21 May. He stated that he had instructed that a notice of his decision with respect to substantiation of the investigation be forwarded to Mr Eaton the previous week, however that had for some reason not occurred, so that he had again given instructions for it to be forwarded to Mr Eaton immediately. Noting the potentially serious consequences, he referred to Mr Eaton's right to seek legal assistance should he wish to do so, but stated that the manner in which he might do so was a matter for Mr Eaton.
97 On 21 May, Mr Eaton received by email, forwarded to him by a Mr Morrish, who was acting on the instructions of Mr Overland, a copy of a minute of Mr Overland of that date and entitled "Outcome of Allegation and Notice of Intent to Transfer". I set out this minute in full:
I refer to my correspondence with you on 09 March 2001 concerning the matters arising from a recent internal investigation into an allegation against you.The purpose of this minute is to:
* notify you of the outcome of the internal investigation;
* advise you that I am considering your transfer from Lyon to a Canberra based role that is yet to be determined (pursuant to an exercise of the powers delegated to me under section 40H of the AFP Act 1979);
* provide you with an opportunity to respond to the prospect of potential redeployment; and
* notify you that I am referring the matter to Employment Standards (ES) for an assessment to determine your suitability for continued employment with the AFP. Before I make a decision in relation to your suitability for continued employment with the AFP, I will provide you with an opportunity to be heard.
Pursuant to Commissioner's Order 6 section 10(1), the outcome of the investigation into an allegation that:
You have been party to the inappropriate use of the AFP email system contrary to the `AFP National Guideline for the use of electronic email' of 14 July 1999'. [emphasis in original]
was found to be substantiated. I have now considered your response (dated 26 March 2001) to my minute in conjunction with the internal investigation. I concur with the substantiated outcome of the investigation. [emphasis in original]
Inappropriate use of AFP computers systems is of great concern to the AFP, given the potential for this type of activity to impact negatively on the organisation and individual employees. The AFP has clear policy relating to the appropriate use of e-mail and advises all staff that e-mail usage is closely monitored. In recent times, action has been taken over a number of breaches of the AFP's e-mail and internet policy, including the termination of appointment of employees.
I am concerned that your actions, as identified by the internal investigation and by your explanation appear to demonstrate an apparent lack of judgement. Further, that your conduct may have:
* brought discredit on your reputation as an AFP employee; and
* damaged the AFP's professional reputation with an external and international agency.
In order to address these concerns, I must now consider whether your conduct and the material gathered during the internal investigation has any impact on your continuing to perform duties as the AFP's SLO to Interpol in Lyon and whether your position in Lyon is still tenable.
I propose to have regard to the following material prior to determining the matter:
* Final Report of Internal Investigation `Operation Pillbox' (minus attachments) (already in your possession);
* `F/A Eaton - Response to II Finding and Report' (already in your possession); and
* `Directive - Liaison Officer Interpol, Lyon' minute from Commissioner to F/A Eaton dated 18 March 1999 (attached).
I also intend to take into account any issue that you may wish to raise with me in relation to this transfer. I would be grateful if you would ensure that anything that you wish to raise with me reaches my office within 7 days of the date that this minute is served on you. If I do not hear from you within this time, I will proceed to determine the matter on the material currently before me.
...
98 In his affidavit of 9 August 2001 Mr Overland stated in relation to the reference to "Employment Standards":
... In this respect I say that ES conduct assessments and provides advice in relation to Professional Standards, performance issues and continued employment suitability to positions within the AFP. I have not yet received the report from ES regarding the applicant's suitability for continued employment, and have not formed any views or made a decision in that regard. The issue of whether the applicant is suitable for continued employment with the AFP is an entirely separate issue to the issue of whether he should be recalled from Lyon.
99 In the same affidavit Mr Overland stated the following in relation to his acceptance of the finding that the allegation had been substantiated:
In accepting the finding that the allegation had been substantiated, I considered closely, in addition to the other documents provided to me, the transcript of the interview with the applicant by II. On the basis of the answers given by the applicant to the questions asked of him, I did draw adverse inferences about the content of those answers, as I set out in my Minute of 4 June 2001 to DPRS. ... I did not draw any adverse inferences from the interview concerning the applicant's demeanour, and was in no position to do so.
100 Some time was spent in cross-examination in dealing with the independence of Mr Overland. Indeed it was put to Mr Overland that his statement in the minute of 21 May that he would only have regard to the three nominated documents was a lie. For this reason it is necessary to record what he stated in his affidavit of 9 August 2001 about Mr Noble's views at paras [28], [29] and [30]:
[28] When I wrote to the applicant on 21 May 2001 I considered the views of the Secretary-General, as communicated to Commissioner Palmer, may be relevant to my consideration whether the applicant ought to be recalled from Lyon, in that those views may have a bearing on whether the applicant's ability to properly discharge his duties had been diminished by his conduct, and in that respect, whether his reputation as an AFP employee, and/or the reputation of the AFP with Interpol had been damaged. I did not at that time consider it necessary to advise the applicant of the Secretary-General's views. I may have considered it necessary to advise the applicant of the Secretary-General's views in the light of any matter he put to me in response to the opportunity I gave him by my letter to be heard on the issue of whether he should be recalled from Lyon. The applicant did not respond to my invitation until after these proceedings, and the application for an injunction, had commenced.[emphasis added]
[29] While I considered the views of Interpol to be relevant for the reasons outlined in the above paragraph, my main consideration was whether the AFP should leave the applicant in his position, irrespective of the views of Interpol. In this respect, important considerations in my view were (and remain) whether, on the basis of the applicant's conduct, the AFP could rely on the applicant to properly continue to discharge his duties with Interpol, and to represent the AFP at Interpol, when the AFP needs to be able to have the utmost faith in, and to trust the integrity and professionalism of, the person occupying the applicant's position. This is particularly so in the case of the person performing the applicant's duties in view of the fact that the person occupying the applicant's position operates autonomously and with very little real control. For these reasons, even if it had been the case that the Secretary-General had advised the AFP that he was unconcerned by the applicant's conduct and was happy for him to remain in Lyon, I would still have conducted my investigation with a view to determining whether the applicant should be recalled.
[30] There is an assertion in the Amended Application in these proceedings that I was merely implementing a decision that had been made by Commissioner Palmer, and that my letter of 21 May 2001, referred to in the above paragraph, was a sham to disguise the fact that a decision had already been made. This assertion is false. Since the matter was referred to me by Commissioner Palmer I have implemented and independent decision making process, first to determine whether the allegation investigated by II was substantiated, and second, to determine whether I should end the applicant's deployment to Lyon. I have, at no time in this matter, acted at the behest or direction of either Commissioner Palmer or the Secretary-General. [any emphasis added]
101 I note that the emboldened passage in para [30] of his affidavit was inconsistent with his evidence referred to in [56] above that until he received the internal legal advice (on 8 March) he was implementing the decision of Mr Palmer. Also, the emboldened passages in [28] and [29] of his affidavit reflect a clear recognition of the relevance, to a degree, of the views of Mr Noble, but a desire to deal with the matter irrespective of them. This is also inconsistent with his answer in [56] above that he excluded Mr Noble's views "from the decision making process". It also highlights the unreality and artificiality of the compartmentalisation of clearly relevant material in this way.
102 Mr Eaton emailed Mr Overland on the same day (21 May) to say that he was experiencing difficulty in accessing various documents (he was then working from home pursuant to the Interpol directive). He sought an extension of time to respond to Mr Overland's letter in order to draft an adequate response. Eaton sought:
Copies of those documents you relied on to reach your decision to concur with the substantiated II finding that I do not have.
103 He requested a copy of the briefing he believed Mr Torr to have been preparing and of any review of the 5 January internal investigation that had been prepared which Mr Torr had informed him about. He also sought to know the date of first contact between Mr Palmer and Mr Noble.
104 Mr Morrish responded for Mr Overland on 23 May to the effect that the request for an extension of time to respond was under consideration. Mr Morrish stated that he was able to provide Mr Eaton with a transcript of the 18 December interview, Mr Eaton's response to the allegation, the 5 January report, minus attachments, and the current AFP email guidelines. Mr Morrish stated that Mr Eaton's response and the 5 January report would, along with a document detailing Mr Eaton's position as an SLO in Lyon, form the material upon which Mr Overland would base his decision. It was emphasised that the material upon which the decision would be made was that referred to in the 21 May notice. Mr Torr stated that he was unable to provide collateral materials that Mr Eaton may have had in his possession and was unable to provide other documents, including an employment suitability report and the report on the II review, as Mr Overland had yet to determine whether these should be available to Mr Eaton. I infer that Mr Overland instructed Mr Morrish so to reply.
105 Mr Eaton replied on the same day expressing curiosity that an extension might not be granted. He also wrote the following:
I note you advise me that the COO is considering my request for an extension. I note that the COO had no hesitation in offering me an extension on an initially longer reponse (sic) time to his first notice, and in doing so advised me that there would be no problem with further extensions if I needed it. It (sic) the event I did not need a further extension. I consider that a refusal to provide me with an extension, under all the cirucmstances (sic) I presently find myself, would be unfair and unreasonable.You outline in your email what documents you say the COO will rely on in making his decision. I have two observations on this:
1. In his notice to me the COO states "In order to address these concerns, I must now consider whether your conduct and the material gathered during the internal investigation has any impact on your continuing to perform duties as the AFP's SLO to Interpol in Lyon and whether your position in Lyon is still tenable." What is the COO refering to when he says "the material gathered during the internal investigation..."? On the face of it, this extends the material the COO will rely on in making his decision.
2. You refer to "collateral information". As I wish to provide the most complete and detailed response for the guidance of the AFP Executive in determing (sic) my future and the "AFP's professional reputation" with Interpol, it is not collateral for the completeness of my response.
You advise that the COO is yet to determine whether I should have access to the ES assessment and the II review report. I feel that under administrative law I have a right of access to those documents, and that it would be unfair not to provide me with this information before I am required to respond to the severity of the foreshadowed administrative penalty. I am advised that this would be a breach of natural justice.
In my email message to the COO of 21 May 2001, I asked a key and fundamental question to the principal direction of my response, i.e. the date of the first contact former Commissioner Palmer had with the Secretary General of Interpol advising him of the allegation against me in this matter. Knowledge of that date is essential for me in framing my response. I have worked in the Executive, and am certain that former Commissioner Palmer would have made a file note of any telephone discussion he had with the Secretary General on this matter. Could you advise me of this information as a matter or (sic) urgency.
106 On 24 May Mr Eaton had a conversation with Mr Morrish. Later that day he emailed Mr Morrish. He again insisted on his need to know the date of first AFP contact with Interpol; though it should be noted that he said that he did not want any details of the conversations in the Commissioner's file note. He asked to have access to the employment suitability report and review document in making his response, and to be able to access his work station at Interpol. Mr Eaton was clearly interested in what Mr Noble's views might be and when they may have been communicated to the AFP, through the Commissioner.
107 Mr Morrish responded on 25 May informing Mr Eaton that Mr Overland had decided to extend the response period by three days but that it had been determined that he would not be provided with the requested documents. Mr Morrish wrote:
...The decision at hand pertains to your deployment and will be based on the material as set out in the notice being:
- the II report into the allegation of inappropriate use of AFP electronic mail;
- your response to the substantiated finding of the allegation; and
- the Direction relating to your deployment to Lyon as SLO.
The decision maker has not nor will be provided with the II review documents in regards to this decision. Therefore a copy of this document will not be supplied.
Similarly the ES report is an advise to COO about the decision making process drawn from the material upon which the decision will be made. Therefore it will not be provided to you as you are already in possession of these source materials.
In response to your request for the date of first contact by former Commissioner Palmer, COO has stated that "that was a matter between the former Commissioner and the Secretary-General".
Further to our conversation on 24/5/01 and your confirming GroupWise:
In regard to your concerns re the presentation of evidence of your career history it is fair to say that it is well recognised your past performance and work history is of a high level, a fact which the decision maker is aware of. As such it may be prudent to recognise that the allegation has already been substantiated and to concentrate on the significant issue at hand and that is the consideration to transfer or not.
As you informed me of your possible return to the Interpol workplace I would appreciate your advice when this is confirmed.
The issue of the wording "party to" in the allegation is one that reflects the allegation as recorded on the direction which you were supplied at the commencement of the II during your ROC.
Please feel free to contact me should you wish to raise any additional issues.
[emphasis added]
108 Again, I infer that the source of Mr Morrish's statement which is emboldened was Mr Overland.
109 Also on 25 May Mr Noble informed Mr Eaton that, based on the conclusions of the Interpol preliminary enquiry, he had decided that as from 28 May Mr Eaton should cease working from home and resume carrying out normal duties at Interpol.
110 On 28 May Mr Eaton informed Mr Morrish that he would be travelling shortly to Australia in order to obtain legal advice face to face. On 30 May 2001 Mr Eaton emailed Mr Morrish requesting a fourteen day extension for the time to respond, on the advice of his solicitors. On 31 May Mr Morrish emailed Mr Eaton to say that Mr Overland had decided that an extension of time to respond would be denied.
111 Late on 31 May the Court was approached with an urgent application brought on behalf of Mr Eaton. Orders were made on that evening by a Judge of the Court that each of the Commissioner or his delegate or Mr Overland be restrained from making any decision concerning or relating to the employment or deployment of Mr Eaton until 5 pm the following day (1 June). Directions were made for notice to be given of this order and leave was granted for abridgement of the time for service of an application which was made returnable at 2.15 pm the following day (1 June). On 1 June the matter was adjourned to 5 June on the basis of an undertaking by the respondents in respect of Mr Eaton to the effect that no action would be taken while the urgent application was on foot to have him returned from France. On 5 June the matter was again adjourned by a Judge of the Court to 14 June on the basis of the continuing undertaking. On 14 June I adjourned the matter further to 18 June on the basis of the same continuing undertaking. On that date I adjourned the matter to 22 June for hearing of the interlocutory issue and injunction application.
112 In the interim period, the following took place. On 1 June Mr Morrish as "Team Leader Employment Standards" produced a minute addressed to Mr Overland. Mr Overland stated in his affidavit of 9 August 2001 that he did not recall having received or read this document or taking any action in relation to it. In cross-examination he said that he had not read the minute until some time in August in the preparation for these proceedings. Given the interruption caused by the interlocutory orders that evidence is not surprising. I accept Mr Overland's evidence in this regard. Mr Eaton stated that he first saw this document on 15 June. The minute is titled "Consideration of Transfer". It details the background to the internal investigation. It details what are said to be the considerations to date: that following the completion of the internal investigation and the provision to Mr Eaton of an opportunity to respond, the allegation was substantiated. It stated that on Mr Overland's request an employment suitability brief was prepared and provided to Mr Overland in relation to giving consideration to the continued deployment of Mr Eaton to Interpol and that having regard to this the notice was served on 21 May reaffirming the substantiation of the allegation and of the intention to transfer Mr Eaton from his current post to a Canberra-based role. I am not clear what this "employment suitability brief" is. It may be Ms Hudson's report of 30 March. The minute described the documents which the 21 May notice provided as the documents upon which any decision was based. While it recorded Mr Eaton being provided with various other documents including the transcript, and his request for an extension of time, it does not record his requests for further documents including the employment suitability brief. It then noted that Mr Eaton's response time had elapsed on 31 May and no response had yet been received. The minute concluded by setting out precedents, Mr Eaton's performance history and other issues. In relation to precedents it was stated that other members of the AFP who had been involved in substantiated breaches of professional standards had been returned to Australia as a result. A number of precedents relating to inappropriate use of AFP email were said to exist. In relation to performance history it was noted that a search of Mr Eaton's records showed that he had performed at a consistently high level during his highly creditable and long service history. Under the heading "Other Issues" Mr Morrish noted that Mr Noble had expressed a view as to Mr Eaton's continued deployment to Interpol. Mr Morrish's recommendation about Mr Noble's views was as follows:
I suggest his view need not be considered by you in making your decision. To put weight on such a view could require you putting his view [Mr Noble's] to F/A Eaton and inviting a response prior to your decision. Such a response would likely result in F/A Eaton endeavouring to gather evidence within Interpol as to his performance.I submit that you may safely proceed to make a decision on the relevant material already put to F/A Eaton. The opinion of an external foreign agency head need not be considered relevant to your determination of F/A Eaton's suitability to externally represent the AFP.
113 Mr Morrish then expressed a conclusion that given the lack of response by Mr Eaton, Mr Overland was now free to make a decision on the relevant material described within the 21 May notice as to Mr Eaton's continued deployment with Interpol. In the event of Mr Overland deciding to transfer Mr Eaton from his position with Interpol to another role within the AFP, Mr Morrish had prepared and included in the minute a draft minute to this effect detailing this possible decision.
114 On 2 June Mr Overland wrote to Mr Noble in relation to the investigation notifying Mr Noble that Mr Eaton had obtained an ex parte interim injunction restraining Mr Overland from making a decision. Mr Overland proposed to keep Mr Noble informed of developments.
115 On 4 June Mr Overland wrote to Mr Wood (as DPRS) confirming the substantiation of the finding against Mr Eaton and setting out his reasons. The first paragraph of that minute was as follows:
I have reviewed the material provided by Employment Standards regarding the question of the substantiation of the allegation against FA Eaton. I have concluded that the allegation is substantiated and now provide my reasons for that decision.
116 It is not clear to me what the "material provided by Employment Standards" was. It may simply be Ms Beck's report of 5 January. In any event, the application does not raise the matter.
117 The reasons contained in the minute of 4 June cover some four pages and deal with the five separate transmissions of material. Mr Overland said that he had not considered email 2 (sent on 3 August 2000) as a breach of the AFP's policy, but had considered it as part of the general factual background surrounding the emails. In dealing with Mr Eaton's responses in his record of interview and written response Mr Overland set out why it was that he had, contrary to Mr Eaton's submission, formed the view that the emails were intentionally and not accidentally sent via the AFP system. He was not satisfied with and expressed concern about Mr Eaton's explanations, but that even if he accepted these, he would find that Mr Eaton had acted in breach of AFP policy. The minute concluded by stating that he had, accordingly, concluded that the allegation against Mr Eaton was substantiated.
118 Because of the submissions of the applicant that Mr Overland erred in law in his approach to the interview I set out below Mr Overland's expressed reasons for finding as he did about the deliberateness of the conduct:
...In relation to the material forwarded from the Interpol address (e-mail number 2) it is not at first clear, either in the record of interview or FA Eaton's response of 26 March 2001, whether this was an accidental or deliberate act. There are a number of relevant points about this e-mail that emerge on closer reading of the record of interview.
At questions 339 to 341 FA Eaton agrees that it was inappropriate to use the Interpol networks to send material of this description. At question 143 it is established that FA Eaton's work computer has details of FA White's work e-mail address but not his private e-mail addresses. At question 213 FA Eaton is asked about e-mail address [an email address] which is one of White's private e-mail addresses. F A Eaton claimed to be unaware this was White's private e-mail address.
Based on these answers it appears that FA Eaton intentionally forwarded this e-mail (e-mail number 2) to FA White's work e-mail address. In fact, this seems to me to be the only logical conclusion based on the above information. It is certainly not open to conclude that this e-mail was the result of a mis-direction as FA White's private e-mail addresses are not on the Interpol system.
Returning to the four e-mails (e-mails number 1,3,4,5) forwarded from FA Eaton's home computer to FA White's work e-mail address, I have difficulty accepting FA Eaton's explanation of mis-addressing. I will explain the reasons for my misgivings.
I note that in the record of interview FA Eaton indicated that he forwarded material from his private e-mail address to FA White's private e-mail address approximately once a week (See questions 122, 152 and 209.) FA Eaton uses Microsoft Outlook Express on his home computer. He has two addresses for Peter White in his address book and maintains that he mistakenly forwarded all four e-mails to the work address.
I also use Microsoft Outlook Express on my home computer, so I am familiar with this software. When opening the address book the list of addressee names is fully visible and on the right hand edge of the screen the first few characters of the e-mail addresses are also visible. It is a very simple matter to scroll across to see the full e-mail address. Once a name is selected for the purpose of addressing an e-mail it is the name only and not the full e-mail address that appears on the message.
I have great difficulty accepting that FA Eaton would not have checked which of the two entries was for FA White's home address, or given his weekly correspondence that he was not aware which of the two entries was for the private address. I can accept that he may inadvertently have highlighted the wrong entry, thereby mis-directing the e-mail, but for this to have happened on the four occasions in question is straining credibility.
Aspects of FA Eaton's explanation of the forwarding of the Powerpoint file `Bay Watch Wicked Weasel' adds to my reservations. FA Eaton forwarded this particular attachment to FA White's work e-mail on two occasions, approximately 5 ½ hours apart. It is apparent that they spoke by telephone in between the forwarding of the first and second version. In this conversation FA White intimated he did not receive the first version (even though he did) and FA Eaton forwarded another e-mail, this time with amendments to the text of the Powerpoint file. (see questions 190 to 206, in particular question 206). In the circumstances as known to FA Eaton, ie that FA White did not receive the first e-mail; I find it difficult to accept that he did not check the e-mail address before forwarding the second version. In fact any suggestion to the contrary is implausible.
Equally I am not satisfied with FA Eaton's explanation of the final e-mail (e-mail number 5). This was the e-mail that was intentionally forwarded to an Interpol address, a private address with a `blind copy' forwarded `accidentally' to FA White's business e-mail address. FA Eaton was specifically questioned about the `blind copy' to FA White and he did not provide a satisfactory answer as to why he forwarded this material to FA White in this manner. (see question 320 to 332.) There is also the intentional forwarding of this e-mail to an Interpol address. This, together with e-mail number 2, indicates that FA Eaton had no qualms about sending this type of material into official e-mail systems.
There are other aspects of FA Eaton's explanation that are concerning. Even allowing for the `disadvantage' of being taken by surprise in the record of interview I am surprised that FA Eaton did not independently recall any of the five incidents in question without specific questioning by the investigators. I don't place great weight on this, but in combination with other aspects of the record of interview I believe it relevant to the plausibility of FA Eaton's explanation.
In considering all these matters I have difficulty accepting FA Eaton's explanation. I am inclined to believe that FA Eaton intentionally forwarded each e-mail to FA White's work e-mail address, in breach of the AFP e-mail policy. I believe it more likely than not that FA Eaton was either aware of which entry in his address book related to FA White's work address or that he would have checked which entry related to the private address prior to sending the e-mails. This is particularly the case with regard to the second transmission of the Bay Watch file (e-mail number 4). In these circumstances it is difficult to accept FA Eaton's explanation of mis-direction in all four cases.
Even if I accept FA Eaton's explanation, I still find that he has acted in breach of the AFP policy. I refer to question 337 and 338 in his record of interview where the following exchange occurred.
Q337 Okay, so for twelve months you have been sending material which can be described as inappropriate, some of it can be described as highly inappropriate but you've not bothered to check which address you are sending the material.
A Oh okay, well, you - I - I accept that, yes.
Q 338 Well, do you have any explanation for it? You accept the statement, but do you have any explanation for it?
A No, I don't. My - my explanation is the same as I had before - carelessness and stupidity.
119 On 6 June Mr Eaton tendered to Mr Overland a 12 page submission in relation to his capacity to continue performance at Interpol and whether his position in Lyon was still tenable. The submission contained a note to the effect that Mr Eaton was to be taken as making the submissions in relation to any determination by Mr Overland in protest, since his primary submission was or would be that the process used by Mr Overland was fundamentally flawed.
120 On 13 June Mr Noble wrote to Mr Keelty in the following terms:
This letter is to request the Australian Federal Police to take steps with a view to ending the detachment of Mr Chris Eaton to ICPO-Interpol. The following is the background underlying this request.On 8 March 2001, Mr Eaton informed Interpol management that he had received notice from the Australian Federal Police (AFP) about a possible administrative action to be taken against him. Mr Eaton stated that this related to his transmission and/or receipt of e-mails containing pornographic attachments.
As we understand it, the AFP investigation, or at least the related procedures, are still on-going and that the AFP is now in the process of concluding this matter.
Since the AFP opened its investigation, Mr Eaton again, received and knowingly opened another email labeled [sic] <<Lesbians>> with reason to believe that it would contain inappropriate material. Thereafter, he notified the co-recipients of this email of his intention to alert authorities. He did so without knowing whether the co-recipients were willful [sic] recipients of the original message and without prior authorization from Interpol or the AFP. In so doing, he gave the co-recipients an opportunity to purge their computer data bases of all evidence of inappropriate use by him or them of Interpol and/or AFP communications facilities on this occasion and other occasions. Finally, his statements and explanations given to the AFP and Interpol in connection with this matter are difficult to credit.
For the above reasons, we suggest our entering into discussions with a view to ending Mr Eaton's detachment to Interpol as soon as practicable. We look forward to discussing this matter with you or your designee as a matter of high priority.
121 This letter was forwarded to Mr Overland for information and response by Mr Keelty. A copy of this letter was also sent to Mr Eaton. On 14 June Mr Eaton wrote to Mr Noble an email to the effect that he had not at any time been given an opportunity to put his case to Interpol on the matter. He sought such opportunity. On 15 June 2001 Mr Eaton first saw the minute of Mr Palmer of 29 January after it was produced to his solicitors on the basis of a notice to produce.
122 On 15 June 2001 the Australian Government Solicitor, acting for Mr Overland and Mr Keelty in the proceedings, by this time commenced, answered some correspondence from Mr Eaton's solicitors. In that answer the following was stated:
2. Your client was the subject of an allegation that he had been party to the inappropriate use of the AFP's email system. An Internal Investigation concluded that the allegation was substantiated.3. The first respondent wrote to your client on 9 March 2001 and gave your client an opportunity to comment on whether the first respondent should, in the context of possible recall from Lyon, regard the allegation as substantiated.
4. Following receipt of your client's comments, the first respondent by Minute dated 21 May 2001 advised your client that, in the context of various management decisions (including possible recall from Lyon), the first respondent concurred with the substantiated outcome of the Internal Investigation. Your client was afforded the opportunity to comment on `the prospect of potential redeployment'.
5. Far from pre-judging either of those issues the first respondent was concerned to refrain from making any decision until such time as your client had had a reasonable opportunity to comment.
6. Your client now relies upon paragraph 25 of the first respondent's affidavit as demonstrating pre-judgment of the issue of recall/redeployment. Reference is made, in particular, to the first sentence of paragraph 25 which reads:
In my view this is clearly an untenable position for the applicant and the AFP to remain in and one which in turn has affected the applicant's ability to effectively perform duties as the AFP's Senior Liaison Officer in Lyon in the future.
7. With respect, your client's request that the first respondent disqualify himself as decision-maker is based upon a misinterpretation of this part of paragraph 25. Far from signalling pre-judgment, the first respondent was merely adverting to the need for a decision to be made one way or the other in order to resolve `an untenable position for the applicant and the AFP': namely, the Secretary-General's proposed decision to advise your client that he, the Secretary-General, no longer required your client's services because he had lost confidence in your client. The very fact of the Secretary-General's intention to take that action, and the reason for it, highlighted the need for the fist respondent to reach a decision about possible recall/redeployment as soon as practicable.
8. The absence of pre-judgment is reinforced by the content of paragraph 26 of the first respondent's affidavit. Whereas your client alleges that the matters referred to in paragraph 26 amount to a farce and/or a sham, the fact is that the first respondent has sworn, on his oath, to an intention to proceed to make a decision. Our client instructs us that paragraph 26 of his affidavit accurately reflects his present state of mind.
9. We trust your client is reassured that the first respondent has neither reached a decision about recall/redeployment nor pre-judged that issue.
123 On 18 June Mr Overland sent an email to Mr Noble at Interpol updating him on the conduct of the matter in this Court and noting that it had become apparent that Mr Eaton had briefed a French lawyer. Mr Overland sought an indication from Mr Noble as to how Interpol might respond to any letter from a French lawyer to the effect that the matters subject of proceedings in Australia should be dealt with through a contract said to exist between Mr Eaton and Interpol.
124 The Chief of Staff of Interpol responded to Mr Overland on behalf of Mr Noble on 20 June to advise that a French lawyer representing Mr Eaton had written to Interpol. A copy of the letter was enclosed. The letter from the Chief of Staff contained the following:
The Secretary General, who is on mission at present, has asked me to respond to your e-mail of 18 June 2001. Let me provide you a brief status report on the matter regarding AFP agent Eaton. As you mentioned in your letter, we have received yesterday a letter from Mr Gourion, a French lawyer that is representing Mr Eaton. Attached is a copy of that correspondence.Our tentative thoughts on a response are as follows:
Inter alia, the 8 May 2001 incident must be seen in the context of the November 2000 incident which had been discovered by the AFP and which triggered an AFP investigation against Mr Eaton. Interpol was informed of that investigation and had decided not to initiate another investigation into the same facts on its side, but to await the results of the AFP investigation, which it still does not have today. Thus, when the 8 May 2001 incident occurred, Interpol tried to find a way which would allow it to establish the new facts while being neutral with respect to the question of Mr Eaton having committed another fault or not. Moreover, there was the possibility of Mr Eaton having been the victim of an attempt by the colleague who had sent the e-mail of 8 May to put him in a difficult situation. Hence the decision to organise Mr Eaton's work at home under Interpol's flexitime rules, and not resort to his suspension (while the officer who had sent him the e-mail of 8 May was suspended). The difference is that the organisation of his work under flexitime rules is perfectly neutral with respect to an allegation of fault on his part, whereas a suspension would have implied an "allegation of a serious or a very serious disciplinary fault" (Article 112(1) of Interpol's Staff Rules).
As regards the Secretary General's request made to the AFP to enter into discussions with a view to ending Mr Eaton's detachment, we will confirm that it is the Secretary General's duty to preserve both the Organisation's reputation and the efficient work of its staff. As both have been sincerely troubled for more than 7 months now by the two incidents, the Secretary General deems it necessary to reach a friendly agreement with Mr Eaton's sending agency with a view to ending his detachment as soon as possible.
Your e-mail also asked about the status of Mr Eaton's appointment. On 14 May 2001, the Secretary General decided to conduct preliminary investigations for the purpose of understanding the circumstances of a message received by Mr Eaton, and required him to conduct his work for Interpol from home. Mr Eaton was returned to full time duty at the General Secretariat since Monday 28 May 2001 following the completion of this inquiry.
125 On 22 June I heard, by videolink between Sydney and Canberra, an application for interlocutory relief for orders restraining the respondents from taking any action in relation to transferring or redeploying Mr Eaton or bringing him back to Australia until further order. On 29 June, the respondents' original undertaking to the Court having subsisted until such time as interlocutory relief was decided, I made orders to the effect of those sought, operative as of 2 July, until which time the undertaking of the respondents remained in place: Eaton v Overland [2001] FCA 876.
126 On 4 July, Mr Noble wrote to Mr Keelty on a number of matters. Included in that letter was that Mr Noble had had very frank discussions with Mr Eaton which had convinced him that Mr Eaton could fulfil the remaining term of his contract as a detached officer. It was noted that all outstanding concerns in respect of Interpol had been resolved to Interpol's satisfaction. Mr Noble stated that he intended to do all that he could to ensure that Mr Eaton was given every opportunity to demonstrate what Mr Noble described as the fine contribution that the AFP was making to Interpol's cause.
127 In his affidavit of 9 August 2001 Mr Overland expressed his concern about the conduct of Mr Eaton in the following terms reflecting in those terms the views he then held and those he previously held:
I had, and have, serious concerns that the applicant's conduct in circulating the above material, particularly the material referred to in paragraph 5 above, [the 14 November email], which I consider to be of a gross and pornographic nature, substantially compromises his ability and fitness to discharge his representational duties as AFP liaison officer at Interpol, in Lyon.
128 Also in his affidavit of 9 August 2001 Mr Overland made the following comments from his perspective as a decision-maker at that time:
[39] Before I proceed to make a decision whether to recall the applicant from Lyon, and consider all the relevant material before me at that time, including the correspondence from the Secretary-General referred to above [being the letter from Mr Noble of 4 July] and the submission of the applicant which is annexure C to his affidavit of 7 June 2001, I may consider it necessary to first consult with the Secretary-General, and to give the applicant a further opportunity to be heard in relation to the views of the Secretary-General, and to give the applicant a further opportunity to be heard in relation to the views of the Secretary-General or any other issue that has been raised. [emphasis added][40] I have not at any time sought to influence or induce the Secretary-General of Interpol to take any steps or action in relation to ending the applicant's posting to Lyon. Nor have I at any time sought to facilitate, or assist, the termination of the applicant's deployment by Interpol. I have at all times acted to protect what I consider to the interests of the AFP.
[41] In taking the action I have taken since the matter of the applicant's alleged breach of the Guidelines was referred to me I have had no knowledge of, and have not considered, whether the applicant has breached any Interpol policy or Guidelines. I also have no knowledge of, and have not considered, whether Interpol intended to take any action against the applicant in respect of the matters the subject of the AFP investigation. Until I was advised in the course of these proceedings that the applicant had apparently consulted a French lawyer, I had no knowledge that the applicant was contemplating action in another Court. I also had, and have, no knowledge, whether Interpol was at risk of having any termination of the applicant's deployment quashed by a French Court, but say that I had no indication from Interpol that it may take action to terminate the applicant's deployment.
[42] In my affidavit sworn in these proceedings on 4 June 2000 I stated that "this was clearly an untenable position for the applicant and the AFP to remain in and one which has in turn affected the applicant's ability to effectively perform duties as the AFP's Senior Liaison Officer in Lyon in the future". In that regard I was mindful of the need for a decision to be made and for the issue of whether the applicant would remain in Lyon to be resolved. I had not formed a view whether I should end the applicant's deployment, and had not prejudged the decision I was yet to make. Annexed hereto and marked with the letter `N' is a letter from the Australian Government Solicitor to the applicant's solicitor dated 15 June 2001, which correctly reflects my position.
129 It is to be noted from para [38] of his affidavit that by the time of his affidavit, Mr Overland recognised the relevance of Mr Noble's views. See also [100] above. The views of Mr Noble were also put forward by the respondents at and prior to the interlocutory hearing as relevant to any interlocutory relief.
130 The matter was heard by me along with the matter involving Mr White (A39 of 2001) in Canberra on 20 to 23 August this year.
THE APPLICATION
131 The further amended application of the applicant, Mr Eaton, was filed on 18 June. It is some 16 pages in length. I will refer to it as the application. It identified six decisions in respect of which orders were sought, being decisions either of Mr Palmer or Mr Keelty or Mr Overland either in his own right or as a delegate of Mr Keelty.
132 The application in respect of the first to fourth decisions is (a) to review (b) for a writ of certiorari to quash and (c) for a writ of prohibition to prevent any further implementation of:
(a) the decision of Mr Palmer on 29 January 2001 to find the allegation substantiated against the applicant that he had made inappropriate use of the AFP email system contrary to the guidelines of 14 July 1999 (the First Decision);
(b) the decision of Mr Palmer on 29 January 2001 to terminate the applicant's employment with AFP (the Second Decision);
(c) the decision of Mr Palmer in late February 2001 to terminate the applicant's secondment to Interpol (the Third Decision);
(d) the decision of 21 May 2001 of Mr Keelty and/or Mr Overland in his own right or as delegate of Mr Keelty, to find the allegation substantiated (the Fourth Decision).
133 The balance of the application is (a) to review the conduct of, (b) for writ of prohibition to prevent any further action being taken by, and (c) for an injunction to restrain any further action being taken by, Mr Keelty and/or Mr Overland in his own right or as delegate of Mr Keelty:
(a) for the purposes of making a decision to terminate the applicant's secondment to Interpol (the Fifth Decision);
(b) for the purposes of making a decision to take disciplinary action against the applicant in relation to the alleged inappropriate use of the AFP email system contrary to the guidelines (the Sixth Decision).
134 The application also sought declarations that the First to Sixth Decisions are unlawful.
135 No debate took place about the form of the relief claimed or its foundation in s 39B of the Judiciary Act and under the Administrative Decisions (Judicial Review) Act 1977.
136 At the end of the hearing, in written submissions, the applicant accepted that the First, Second and Third Decisions were not operative. Complaint thus focuses upon the Fourth Decision, and thereafter on the Fifth and Sixth Decisions. The restraints sought in relation to the threatened decisions (the Fifth and Sixth Decisions), in significant part, depend upon the answers thrown up by the consideration of the Fourth Decision.
137 There was no debate about the underlying proposition that Mr Eaton was entitled to be accorded procedural fairness. No statutory limitation restricting the purview of the review of the conduct of the respondents was called in aid.
THE FOURTH DECISION
138 The attacks made on the Fourth Decision were somewhat repetitive and entangled. They were contained in paragraphs 4 and 7 of the application.
4. The Fourth Decision, made by the First Respondent on 21 May 2001 to substantiate the allegation against the Applicant.4.1 The making of the decision was an improper exercise of the power conferred by s.40F of the Australian Federal Police Act in pursuance of which it was purported to be made, in that
4.1.1 it was an exercise of the power for a purpose other than a purpose for which the power was conferred, namely to assist the Applicant's employer (Interpol) to terminate the Applicant's appointment to Interpol in circumstances where -
4.1.1.1 the Secretary General of Interpol had said that one of his reasons for seeking the termination of the Applicant was that there had been a fundamental breach of trust by the Applicant in not notifying the Secretary General of the AFP's investigation of the Applicant, and the First Respondent knows that at the relevant time between December 2000 and March 2001, the Applicant had been directed by a delegate of the Commissioner not to notify any person of the investigation,
4.1.1.2 the First Respondent knew that the Applicant has breached no Interpol policy or guidelines,
4.1.1.3 The First Respondent knew that Interpol did not intend to take any administrative or disciplinary action against the Applicant in respect of the matters being investigated by the AFP, and
4.1.1.4 The First Respondent knew that Interpol was at risk of having any termination of the Applicant quashed by a French Court,
4.1.2 it was an exercise of a personal discretionary power at the direction or behest of another person, namely Ronald K Noble, the Secretary General of Interpol, and Michael Palmer, the then Commissioner of the AFP.
4.2 A breach of the rules of natural justice occurred in connection with the making of the decision, in that -
4.2.1 The First Respondent is perceived to be biased in that -
4.2.1.1 on or about 29 January 2001 he received a Minute from the Commissioner in which the Commissioner said that he found the allegation against the Applicant substantiated,
4.2.1.2 in February and March he received an order from the Commissioner to terminate the Applicant's secondment to Interpol,
4.2.1.3 he was aware that the Commissioner told the Secretary General in February 2001 that it was the AFP's intention to terminate the Applicant's secondment to Interpol and return him to Australia at the first available opportunity,
4.3 The First and Second Respondents did not have jurisdiction to make the decision;
4.4 The First and Second Respondents did not follow procedures required by law to be observed in connection with the making of the decision;
4.5 The decision was not authorised by the enactment in pursuance of which it was purported to be made;
4.6 The making of the decision involved an error of law;
In that the First and Second Respondents -
4.6.1 have not followed the procedures set out in the Complaints (Australian Federal Police) Act and the Australian Federal Police Discipline Regulations in relation to the handling of allegations of breaches of discipline;
4.6.2 have purported to find disciplinary allegations against the Applicant substantiated when he has not been charged with a disciplinary charge nor given the opportunity to have the charge heard and determined by the Australian Federal Police Disciplinary Tribunal, and
4.6.3 did not provide to the Applicant proper particulars of the allegation he was required to answer prior to the direction given to the Applicant on 18 December 2000 by Federal Agents Beck and Killmier to answer questions, contrary to Commissioner's Order 6 s.8(2).
4.7 A breach of the rules of natural justice occurred in connection with the making of the decision, in that it was based on a telephone interview of the Applicant conducted under Commissioner's Order 6 by Federal Agents Beck and Killmier of Internal Investigations on 18 December 2000 in circumstances where -
4.7.1 the Applicant was given no proper particulars of the allegation that he was required to answer,
4.7.2 the Applicant was not given copies of the emails and the AFP Guidelines on which he was to be directed to answer questions, and
4.7.3 the First Respondent purported to make findings as to the Applicant's credit based on an interview conducted by telephone rather than in person or by videolink.
4.8 The making of the decisions and the proposed decisions involved an improper exercise of the power conferred by the enactment under which the decisions were purported to be made, in that the Respondents failed to take into account a relevant consideration namely the Complaints (Australian Federal Police) Act and the Australian Federal Police Discipline Regulations in relation to the handling of allegations of breaches of discipline.
7. In relation to the First to Sixth Decisions generally
7.1 The persons who purported to make, or who are proposing to make, the decisions, do not have jurisdiction to make the decisions, and
7.2 The decisions were not, or are not, authorised by the enactment under which they are purported to be made, namely ss. 40F and 40H of the Australian Federal Police Act 1979
In that -
7.2.1 It is contrary to Article 30 of the Constitution of Interpol for a member body of Interpol to attempt to influence a staff member of Interpol,
7.2.2 It is contrary to Article 30 of the Constitution of Interpol and Article 5 of the Interpol Staff Regulations for a member of staff of Interpol to accept instructions from any authority outside Interpol,
7.2.3 The Applicant at all material times was a member of the staff of Interpol in his capacity as a detached officer of Interpol since 30 March 2000,
7.2.4 Australia at all material times has been a member body of Interpol through the Australian Federal Police,
7.2.5 Australia at all material times has been bound by the Constitution and Regulations of Interpol,
7.2.6 The Commissioner's powers in ss.40F and 40H of the AFP Act are to be interpreted so as to be consistent with Australia's obligations under the Constitution and Regulations of Interpol.
7.3 The actions of members of the AFP in -
7.3.1 conducting an investigation into the allegations against the Applicant under Commissioner's Order 6,
7.3.2 directing the Applicant on 18 December 2000, under Commissioner's Order 6, to answer questions in relation to the allegations made against the Applicant,
7.3.3 directing the Applicant on 18 December 2000, under Commissioner's Order 6, not to inform any other person of the investigation,
7.3.4 requiring the Applicant, on March 2001, to show cause why the allegations against the Applicant should not be found substantiated,
7.3.5 finding, on 21 May 2001, that the allegations against the Applicant had been substantiated,
7.3.6 requiring the Applicant, on 21 May 2001, to show cause why his secondment to Interpol should not be terminated,
7.3.7 requiring the Applicant, on 21 May 2001, to show cause why his employment with the AFP should not be reviewed,
Amounted to
7.3.8 the giving of instructions to the Applicant, and
7.3.9 an attempt to influence the Applicant,
at a time when the Applicant was a staff member of Interpol.
7.4 As a result of the matters set out above, the actions of members of the AFP referred to in par.5.9 were contrary to the Constitution and Regulations of Interpol and hence outside the powers of the Commissioner contained in the provisions of the AFP Act.
4.1 Improper Exercise of Power - the decision being made to assist Interpol to terminate his employment at the direction or behest of Mr Noble and Mr Palmer.
139 I reject these grounds of attack. I am satisfied from Mr Overland's evidence that in May 2001 he was not simply putting into effect the views of Mr Noble or those of Mr Palmer; nor was he making the decision for the benefit of or to assist Interpol.
140 The necessity to expend the energy and time over this matter as was expended by Mr Overland and others at the AFP was, of course, a matter for them. However, there is no doubt, it seems to me, that the consideration of whether or not the allegation was substantiated and what effect this had or may have on Mr Eaton's career was taken very seriously at the AFP by Mr Palmer, Mr Overland, Mr Hughes, Mr Wood, Ms Beck and Mr Killmier. It is not for me to judge whether the views plainly held by all of them as to the gravity of the subject matter were appropriate. The consideration of the material and the decision of 21 May 2001 was undertaken and made by Mr Overland, rightly or wrongly, in pursuance of what he saw as his obligations and duties as COO of the AFP and not at the direction of anyone else, or for the purposes of any other organisation.
141 As I said earlier, I accept Mr Overland's evidence that after 8 March he was not merely implementing the direction of his Commissioner.
142 As to Mr Noble's views, while Mr Overland clearly said in his letter of 17 May 2001 ([83] above) that he would take them into account, there is no basis for a conclusion that he was acting under some form of dictation from Mr Noble or that he was acting to effect the purposes of Interpol.
4.2 and 4.7 Breach of the rules of natural justice.
143 Paragraph 4.2 of the application identifies an apprehended bias allegation concerning the receipt by Mr Overland of Mr Palmer's views. Paragraph 4.7 identifies procedural defects in the interview on 18 December 2000 and, inferentially, in the making of the report of 5 January 2001. I will deal with the complaints about the interview and the initial report first.
144 There is no doubt that Mr Overland relied on the interview of 18 December 2000. There may have been procedural deficiencies in the interview. Mr Eaton did not have the emails before him. He was given no particulars of the allegation prior to the interview. It was submitted that the direction under Commissioner's Order 6 was invalid as lacking particulars.
145 These complaints may well have had force were Ms Beck's views as set out in the report of 5 January 2001 the operative decision. They were not. They were a recommendation. By March 2001 Mr Eaton, cognisant of any limitations in the conduct of the interview and of the content of Ms Beck's report, had full opportunity to consider the emails and to put such submissions as he wanted to. Any such procedural defects, if such, ceased to have operative effect since Mr Eaton was able to put what matters he wished to the decision-maker, Mr Overland, about what he should make of the earlier report and to remedy the consequences of any procedural defects. The analogy of a full merits appeal is overwhelming where a decision, amounting only to a recommendation, has been reached by defective procedures if the person the subject of the recommendation is then given, as Mr Eaton was, a full opportunity to put what he wanted to the decision-maker: cf. Calvin v Carr [1980] AC 574, 592, 593; Preston v Carmody (1993) 44 FCR 1; Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294.
146 Mr Eaton took the opportunity in his submissions of 26 March 2001 to comment on the interview of 18 December. There is no foundation for concluding that, as a matter of law, an interview conducted without proper notice of particulars cannot be taken into account by a decision-maker.
147 Complaint was made about the interview being conducted over the telephone. It was submitted that the decision-maker cannot, in the absence of seeing the party interviewed, draw conclusions about the inaccuracy or unreliability of evidence given at the interview. Mr Overland was not a judge. He was making an administrative decision. A telephone interview is an acceptable way of gathering information: cf. Omran v Australian Pastoral Commission (1991) 14 AAR 51. Mr Overland was free to use the transcript in the way he did. In the reasons provided by him in his minute of 4 June 2001 (see [118] above), Mr Overland gives his reasons for concluding that the emails were sent intentionally to Mr White's AFP address. These reasons may be good or bad. That is not a matter for me. They do not display any breach of legal principle. In any event Mr Overland expressed his view that Mr Eaton had acted in breach of AFP policy even if he accepted Mr Eaton's protestations of accident. There is a further issue about these reasons of 4 June concerning the second email ("Bad Boy Bubby"). I deal with this at [213] to [217] below.
148 For the above reasons, I see no error of law or breach of legal principle in the use made by Mr Overland of the 18 December 2000 interview.
149 I now turn to Mr Palmer's views and para 4.2 of the application.
150 Far more persuasive is the claim that Mr Overland did not disclose to Mr Eaton the views of Mr Palmer and Mr Palmer's communications with Mr Overland. The three specific matters are set out in paras 4.2.1.1, 4.2.1.2 and 4.2.1.3 of the application.
151 I will not repeat in detail the factual history of this matter from January to May 2001. However the following can be extracted as a summary.
152 On 29 January Mr Palmer in the clearest terms expressed his views that the allegation of inappropriate use of the AFP email system had been substantiated, that there were serious breaches of the guidelines and standards expected of AFP employees, that it was necessary not only to consider withdrawing Mr Eaton from Lyon but questions arose "regarding his overall suitability", that there had been an unquestionable breach of "AFP values" and that a final decision on "penalty" should await ascertainment of Mr Noble's views.
153 Leaving aside for present purposes the lack of clarity in some of Mr Overland's evidence, it would appear clear from his evidence referred to at [56] above, which in this respect I accept, that upon receipt of this he did not see his function as other than as one implementing in due course the views of Mr Palmer as to substantiation.
154 In mid February 2001 Mr Palmer told Mr Overland that he (Mr Palmer) had spoken to Mr Noble and the latter had made clear that he viewed the matter as serious. Later in February or early March Mr Palmer sent to Mr Overland the February memorandum ([45] above) which informed him of Mr Palmer's view ("our view") that Mr Eaton should be returned to Australia "at the first reasonable opportunity" and that Mr Noble agreed. The minute also raised the question of Mr Eaton's "continued suitability". Upon receiving this document Mr Overland gave Mr Wood the handwritten direction dated 4 March 2001 ([49] above).
155 Again leaving aside for present purposes the lack of clarity in some of Mr Overland's evidence, the evidence referred to at [56] above makes it clear, and I so find, that Mr Overland was treating the matter as substantiated by Mr Palmer and a show cause procedure was being adopted as to the consequences - "penalty" to use Mr Palmer's word. This is confirmed by his concessions set out at [51] above.
156 It was shortly after this that Mr Overland was apprised of the views of the lawyer that substantiation should not take place without natural justice being afforded. However at this point Mr Palmer, the Commissioner, had clearly and unequivocally decided that matter, had passed his views to Mr Overland, had directed Mr Overland to put in train a show cause process about penalty and Mr Overland had received these views and commenced implementation of the direction based on them.
157 Mr Overland's solution was, according to his evidence referred to at [56] above, now to afford Mr Eaton natural justice on the question of substantiation. This led to his letter of 9 March ([63] above) which stated, amongst other things, that he would like to hear from Mr Eaton anything he wanted to put as to why he, Mr Overland, should not accept the conclusions of the internal investigator (Ms Beck) that the allegation was substantiated. This was done in circumstances where for some time he had known of Mr Palmer's views that the allegation was substantiated and some days before he had taken steps to implement that finding by Mr Palmer to deal with penalty. Mr Overland said ([56] above):
...I considered whether we could afford Mr Eaton natural justice by putting those matters to him and having him reply. I didn't think that was appropriate. I believed the best way to proceed was to simply exclude those matters from my mind in the decision-making process. Now, whilst I realise that is to a degree an artificial process, in a sense, that is what frequently happens to my knowledge in decisions of this nature. So, I proceeded from that point forward, trying to exclude from my mind in the decision-making process the views that had been expressed by Commissioner Palmer and by Secretary-General Noble, leading up to - well, covered in the events that have been described in the various documents that we've been through over the last couple of days...
158 I leave aside Mr Noble's views for the moment. The failure to disclose them is not complained of in connection with the making of the Fourth Decision.
159 In my view, the above circumstances epitomise what Brennan J (as his Honour then was) was driving at in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 when he said:
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.
160 No suggestion was made that Mr Palmer's views could not be passed on because of confidentiality. The respondents submitted that Mr Palmer's views were not credible, relevant and damaging. This was so, it was submitted, because Mr Overland said he was not referring to them. Leaving aside such exclusion by Mr Overland, the views could only be described as potent and weighty. But that proposition, that the decision-maker denudes credible, relevant and damaging material of those characteristics by his or her decision to exclude it from consideration, is the very thing Brennan J warned against.
161 It was submitted that Mr Eaton could not have said very much about Mr Palmer's views anyway and that no real opportunity had been lost. I disagree. Whilst I accept that there was ample material available from Mr Eaton's own submission that the allegation was substantiated, nevertheless with Mr Palmer's views disclosed, Mr Eaton would have been put on notice that not only did an investigating officer have a view about substantiation, but so did the head of the organisation and moreover he had a view which threatened Mr Eaton's very employment. It is not for the Court to say that nothing much could have been done. Mr Eaton was entitled to a procedure unsullied by important material not being shown to him. I am not satisfied that the failure to provide this material could have made no difference to what Mr Eaton put or what Mr Overland decided: cf Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145-6.
162 It seems to me that there was a real risk of subconscious prejudice and in those circumstances Mr Eaton was entitled to frame his response in the light of knowing the views of Mr Palmer, even if they had been reached without giving Mr Eaton an opportunity to be heard. The lack of consolation and assurance referred to by Brennan J is reflected by the heat generated in this litigation by the disclosure of Mr Palmer's documents. Mr Eaton and his advisers, when apprised of them by compulsory court process, tended to look askance at the fairness of Mr Overland's conduct. This was exacerbated by Mr Overland leaving to the last minute, and in answer to a question from me, his explanation as to why Mr Palmer's views were seen by him as irrelevant to his decision. It may otherwise only have emerged in re-examination.
163 Mr Overland should have disclosed Mr Palmer's views to Mr Eaton. If he wished to exclude them from consideration he could have said so. Mr Eaton could then have approached his submissions in the context in which he found himself: knowing of Mr Palmer's views and the seriousness with which his Commissioner viewed what he had done, he could have sought to deal with them, notwithstanding any expression of view by Mr Overland that they were irrelevant. Mr Eaton may have wanted nevertheless to deal with Mr Palmer's views to combat any possible subconscious prejudice in Mr Overland which he may have foreseen.
164 I think that the difficulties apparently encountered by Mr Overland in the litigation in straightforwardly, frankly and timeously expressing what occurred reveal a recognition in him that what he did was, at the least, an approach unlikely (to use the words of Brennan J) to "console" or "assure" Mr Eaton that he had been dealt with fairly.
165 My views about the need to disclose Mr Palmer's views would not lead to the clogging of the AFP's decision-making process. It would not "over-judicialise" what Mr Overland had to do. This was not a hum-drum operational decision. It was seen (that being a matter for Mr Overland and before him Mr Palmer and Ms Beck) as a very serious matter. Mr Palmer seems to have viewed it as raising questions about Mr Eaton's very fitness for employment. Mr Eaton was entitled to a commensurate degree of fairness in the process of dealing with such a serious matter. He only had to be given one more document accurately summarising Mr Palmer's views.
166 For these reasons the Fourth Decision was flawed. I deal later with the consequences of this.
167 Assuming that the decision is to be addressed again, the question arises whether Mr Overland should be permitted to undertake any reconsideration of the matter. The respondent's submissions reflected an appreciation that the claim as to apparent bias was, to some degree, a way of expressing the procedural fairness claim. I think that to a degree that is the correct way of looking at the problem. The question as to whether Mr Overland should be restrained from taking part in a reconsideration of the decision must rest on a principled legal basis. That basis must be found in the matters complained of going to apprehended bias. I will return to this question after I have dealt with some aspects of the Fifth and Sixth Decisions, because Mr Overland's conduct in relation to these matters will affect my view as to the appropriateness of Mr Overland further being involved.
4.3 to 4.6 as particularised in 4.6.1 and 4.6.2 and 4.8 - whether the whole procedure was unlawful as not being carried out under the Complaints (Australian Federal Police) Act and the Australian Federal Police (Discipline) Regulations.
168 The applicant puts the submission that if his conduct is such as could amount to a disciplinary offence for the purposes of the Complaints (Australian Federal Police) Act 1981 (the Complaints Act) and the Australian Federal Police (Discipline) Regulations 1979, made under the AFP Act (the Regulations) then the matter cannot be dealt with administratively under Parts III and IV of the AFP Act - dealing with, amongst other things, the Commissioner's powers over AFP employees and the Commissioner's command powers.
169 It is apparently conceded by the applicant that there is at least one exception to this - the power of the Commissioner under s 28 to terminate at any time the employment of an AFP employee.
170 The parties have provided me with general and wide-ranging submissions on this topic. I see in none of these a basis for concluding that if conduct is engaged in which could form the basis of a disciplinary charge that disciplinary course, and resort to the Disciplinary Tribunal set up under the Complaints Act, is the sole course of action open to the Commissioner.
171 Such a conclusion draws no life from the Complaints Act or the Regulations. The discipline provisions are plainly not a code, exclusive from, and having the effect of reading down, the provisions of Parts III and IV of the later AFP Act.
172 The powers of the Commissioner under ss 28, 37, 38, 39, 40, 40H and 40L are wide. They are intended to be. They are intended to give flexible employment and command powers to the Commissioner. There is simply no basis for a conclusion that the availability of proceedings for a disciplinary offence under reg 31 or reg 33 of the Regulations prevents the Commissioner from taking steps of an administrative kind under his powers in Parts III and IV of the AFP Act and requires the Commissioner, if he is to act at all, to act to bring disciplinary charges.
173 Sometimes, possibly here, the alleged underlying facts will give the Commissioner a choice to act by bringing disciplinary charges or to act under his employment or command powers. If he chooses the latter he may do so because he feels that most relevant and important are questions of deployment, assignment, secondment or suitability for employment. He may see, in those circumstances, the bringing of formal disciplinary charges as unnecessary and inappropriate.
174 As I read the legislation there is nothing to prevent, and ample power to permit, such a choice.
175 The overlap between disciplinary and command and management powers is not unusual. (See by way of comparison Gaisford v Fisher (1997) 45 ALD 87, 91 - 92.)
7. Do the respondents and the AFP have power to take action in this matter given Mr Eaton's status as a detached officer with Interpol?
176 On 18 March 1999 Mr Eaton was appointed AFP Liaison Officer to Interpol General Secretariat Regional Co-ordination Bureau. The letter of appointment, appointing him for three years, expressly recognised that he remained a member of the Australian Federal Police. It appears that the secondment was accepted by Interpol for one year, to 31 March 2000.
177 In June 2000 Mr Eaton, who had remained in Lyon, was appointed a Grade 5 Officer at Interpol with the title "Liaison Officer" for a fixed term of 2 years expiring on 28 February 2002. The following appeared in his letter of appointment:
Dear Sir,I have pleasure in appointing you to the post indicated below at the ICPO-Interpol General Secretariat. Your conditions of employment will be governed by the clauses of the present letter, by the provisions of the Staff Regulations and Rules and by the Staff Instructions issued by the Secretary General, as well as by any amendments that may be made to those texts. Copies of the Staff Regulations and Rules are attached.
If you decide to accept this post under the conditions stated herein, please date and sign the attached letter of acceptance and return it to me as soon as possible, and at latest by the date on which your appointment becomes effective, failing which the present letter will be deemed null and void.
The present letter of appointment, together with your letter of acceptance, will constitute your employment agreement.
178 On 5 July 2000 Mr Eaton signed a declaration of loyalty to Interpol.
179 The above re-arrangement was made in consultation with the AFP. In January 2000 Mr Kendall, the then Secretary General of Interpol, wrote to Mr Palmer about Mr Eaton's position and proposed that Mr Eaton's status be changed to a fixed term detachment for 2 years with one consequence being that his salary would be paid by Interpol and another being that Mr Eaton's employment was in accordance with Interpol's Staff Regulations. By letter dated 3 May 2000 Mr Palmer agreed to this course. The letter requested the salary and non-residence allowance to be paid to the Reserve Bank of Australia. Evidently, the AFP continued to pay Mr Eaton and received in reimbursement or partial reimbursement his salary and allowances. This latter point was made clear in a later letter of 19 September 2000.
180 Thus, the precise position of Mr Eaton in terms of employment is less than clear. He was an employee of Interpol. He had not resigned or retired from the AFP. The AFP continued to pay him and receive reimbursement from Interpol.
181 Interpol is an international organisation whose seat is in France and whose constitution, general regulations and staff rules were in evidence before me. The AFP chooses to participate in its activities by, amongst other ways, the secondment or detachment of officers such as Mr Eaton. It is not an Australian governmental authority. Participation in its activities is not to be equated with adoption of its constitution and rules as if they were treaties.
182 The applicant places reliance upon a number of provisions of the Interpol constitution and staff regulations. Article 10 of the staff regulations provides for the signing of a declaration of loyalty. It conforms with what Mr Eaton signed and contains the following:
I solemnly undertake to exercise in all loyalty, discretion and conscience the functions entrusted to me as an international official of the ICPO-Interpol, to discharge these functions and regulate my conduct with the interests of the Organization alone in view, and not to seek or accept instructions from any government or any authority external to the Organization in regard to the performance of my duties within the Organization.I declare that I shall not disclose to any unauthorized person any information which may come to my knowledge in the performance of my functions as an official of the ICPO-Interpol, unless such disclosure constitutes part of my duties or has been duly authorized by the Secretary General.
I further undertake to inform the Secretary General immediately of any conflict that may arise between the obligations deriving from links I have maintained with the authorities of the State which detached me on the one hand and, on the other hand, the obligations incumbent upon me as a result of my appointment within the ICPO-Interpol.
[Emphasis added.]
183 Article 5(2) of the staff regulations is also relied on. It was in the following form:
In the performance of their functions within the Organization, officials of the Organization shall not seek or accept any instructions from any government or from any authority external to the Organization. They may not, under any circumstances, represent a government or a country's administration. [Emphasis added.]
184 From the above it is submitted that the AFP had no power or `jurisdiction' to investigate allegations arising from his activities in France. This flows it is said from Interpol's assumption of responsibility as employer.
185 Mr Eaton did not cease to be employed by the AFP. With the consent of the AFP he took up a position in Interpol where he was directly responsible to Interpol as an employee. He retained his position and rank in the AFP. He was paid directly by the AFP (who obtained reimbursement via a crediting of salary and allowances).
186 It is a little unclear which legislative regime was in place at the time of the change of Mr Eaton's status to one of detachment. The AFP Act was significantly amended in 2000. The current form of the AFP Act came into force on 2 July 2000.
187 Subsection 3A(3) of the AFP Act envisages that employment will end by resignation, retirement or termination. An AFP employee is defined in s 4 as a person engaged under s 24. Under subs 24(1) the Commissioner may on behalf of the Commonwealth engage people as employees. Under s 28 the Commissioner may terminate the employment of an AFP employee. Under ss 37 and 38 the Commissioner has the general administration and control of the operations of the AFP and in the exercise of such powers may make orders with respect to the general administration and operation of the AFP.
188 Section 40F of the AFP Act provides for secondment. Subsections 40F(1) and (2) are in the following terms:
40F Secondment of AFP employees to other police forces etc.(1) The Commissioner may arrange for an AFP employee to be seconded for a specified period to:
(a) the Police Force of a State or Territory or of a foreign country; or
(b) the Australian Public Service; or
(c) any other body or organisation (including an international body or organisation) whether within or outside Australia.
Termination of secondment
(2) The Commissioner may at any time terminate a secondment under subsection (1) after consultation with the Police Force, the Public Service Commissioner or the body or organisation, as the case may be.
189 Section 40G provides for the effect of secondment on status and is in the following terms:
40G Effect of secondment on status as AFP employee etc.Secondment has no effect on person's status
(1) The secondment under section 40F of a person who is an AFP employee does not affect:
(a) the person's status as an AFP employee; and
(b) if the person is a member - the person's status as a member; and
(c) the application of any provision of this Act in relation to the person during the period of the secondment.
Discipline obligations etc. continue
(2) During a period of secondment of an AFP employee under Section 40F, the employee remains subject to the same obligations and liabilities in relation to discipline as those to which the employee would, but for the secondment, have been subject as such an employee.
Rights etc. arising from office or position to which person seconded
(3) Nothing in this section affects:
(a) any rights, powers or immunities that an AFP employee who is seconded under section 40F has by virtue of holding the office or position to which the employee has been seconded; or
(b) the extent to which the employee is subject to obligations or liabilities in relation to discipline by virtue of holding the office or position to which the employee has been seconded.
190 The words "secondment" and "seconded" in ss 40F and 40G are not defined in the AFP Act. The verb "to second" is defined in the Oxford English Dictionary (2nd Ed) as follows:
To remove (an officer) temporarily from his regiment or corps, for employment on the staff, or in some other extra-regimental appointment. Also transf. Of employees in other occupations and employments. Hence se'conded.
191 The Macquarie Dictionary (Revised Edition, 1985) defines "to second" as: to transfer (a miliary officer or other) temporarily to another post, organisation, or responsibility.
192 I see no reason to limit the Commissioner's power in s 40F to arrange the type of circumstance under which Mr Eaton worked during his first year at Interpol and not to extend to arrange for him to become a "detached officer". He was at all times, it seems to me, in the circumstances discussed earlier, on secondment for the purposes of ss 40F and 40G.
193 Prior to 2 July 2000 secondment was dealt with by the then s 33 of the AFP Act, subs 33(1), (1A) and (2) of which were in the following form:
33 Secondment to other services etc.(1) Subject to this section, the Commissioner may arrange for a member or staff member to be seconded for a specified period to:
(a) the Police Force of a State or Territory or of a country other than Australia; or
(b) any other body or organization (including an international body or organization) whether within or outside Australia.
(1A) The Commissioner may at any time, after consultation with the Police Force, body or organisation concerned, terminate a secondment under subsection (1).
(2) The Minister may give the Commissioner written guidelines on the secondment of members or staff members to the Police Force of a foreign country, or to any other body or organisation outside Australia.
194 Prior to 2 July 2000 the consequences of secondment were provided for by subss 33(6) to (9) which were in the following terms:
(6) During a period of secondment of a member under this section, the member:(a) retains the same rights, powers and immunities as the member would, but for the secondment, have as such a member; and
(b) remains subject to the same obligations and liabilities in relation to discipline as those to which the member would, but for the secondment, have been subject as such a member.
(7) Nothing in subsection (6) affects:
(a) any rights, powers or immunities that a member who is seconded under this section has by virtue of holding the office or position to which the member has been seconded; or
(b) the extent to which the member is subject to obligations or liabilities in relation to discipline by virtue of holding the office or position to which the member has been seconded.
(8) During a period of secondment of a staff member, the staff member remains subject to the obligations and liabilities in relation to discipline to which he or she would have been subject as such a staff member but for the secondment.
(9) Subsection (8) does not affect the extent to which the staff member is subject to obligations or liabilities in relation to discipline because of holding the office or position to which he or she has been seconded.
195 Prior to 2 July 2000 "Special Leave of Absence" was provided for by s 34 which was in the following terms:
34 Special leave of absence(1) The Commissioner may, on application by a member or staff member, grant to the member or staff member leave of absence with or without pay for the purpose of enabling him or her to engage, whether in Australia or elsewhere, in:
(a) service with the government of a country other than Australia;
(b) service with a prescribed institution, organization or body, or an institution, organization or body included in a prescribed class of institutions, organizations or bodies; or
(c) prescribed studies or research, or studies or research included in a prescribed class of studies or research.
(2) Leave shall not be granted under subsection (1), and a period of leave so granted shall not be extended, where, at the end of the leave or of the extended period, the member or staff member will have been absent on leave under subsection (1) for a continuous period exceeding 12 months, unless the Commissioner has certified that, in his or her opinion, the engagement, or further engagement, of the member or staff member in the service, studies or research concerned for the period of the grant or extension is in the public interest.
(3) Where leave is granted under subsection (1), the Commissioner may at any time:
(a) where the leave is granted for a purpose of a kind referred to in paragraph (1)(a) or (b) - terminate the leave after consultation with the government, institution, organisation or body concerned; or
(b) where the leave is granted for a purpose of the kind referred to in paragraph (1)(c) - terminate the leave.
(4) Subject to subsection (5), during a period of leave granted to a member or staff member under subsection (1), the member remains subject to the same liabilities and obligations in relation to discipline as those to which the member or staff member would, but for the granting of the leave, have been subject as such a member or staff member.
(5) During a period of leave granted to a person under subsection (1) for the purpose of enabling the person to engage in service with an association of members or staff members that is an organisation within the meaning of the Workplace Relations Act 1996, the person is not, in respect of any action taken by the person that is reasonably required for the proper performance of the functions of an officer of that association, subject to any liability or obligation in relation to discipline to which a person who is not granted such leave would be subject, other than such a liability or obligation arising:
(a) in respect of action by the person that is the subject of complaint under the Complaints (Australian Federal Police) Act 1981; or
(b) under the Complaints (Australian Federal Police) Act 1981.
196 There was no evidence to the effect that Mr Eaton applied for special leave of absence.
197 No equivalent to s 34 appears in the current AFP Act which came into force on 2 July 2000; but s 23 is very broad. Subsection 23(1) states:
23 Employer powers etc of Commissioner(1) The Commissioner, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of AFP employees.
198 Also, the retention of a provision such as s 40F in the context of s 23 leads to the conclusion that the failure to re-enact a leave of absence provision does not mean that there was intended to be an absence of the controlling power in the Commissioner found in s 23, subs 40F(2) and s 40G which previously existed in s 34. Secondment is wide enough to encompass the form of detachment displayed by Mr Eaton's circumstances after mid 2000. It might be an informal leave of absence, but it is a secondment nevertheless. Anyway, s 23 is sufficiently wide in its terms to continue to allow the Commissioner to exercise his powers over Mr Eaton. The powers there referred to are wide enough to cover an enquiry of the kind carried out here. In my view in August 2000 and thereafter Mr Eaton was an AFP employee and was subject to the powers contained in the AFP Act.
199 These objections of the applicant to the exercise of decision-making power by the respondents fail.
THE FIFTH DECISION
200 To the extent that matters may be seen as affecting the Fifth Decision (the question of Mr Eaton's secondment to Interpol) which have been discussed in relation to the Fourth Decision, I will not repeat my discussion of them.
201 The attacks made on the Fifth Decision are, again, somewhat repetitive and entangled. They were contained in paragraphs 5 and 7 of the application. Paragraph 5 is as follows:
5. The Fifth Decision, proposed to be made by the First Respondent to terminate the Applicant's secondment to Interpol
5.1 The making of the decision will be an improper exercise of the power conferred by s 40F of the Australian Federal Police Act in pursuance of which it is purported to be made, in that
5.1.1 it is an exercise of the power for a purpose other than a purpose for which the power is conferred, namely to assist the Applicant's employer (Interpol) to terminate the Applicant's appointment to Interpol in circumstances where -
5.1.1.1 the Secretary General of Interpol had said that one of his reasons for seeking the termination of the Applicant was that there had been a fundamental breach of trust by the Applicant in not notifying the Secretary General of the AFP's investigation of the Applicant, and the First Respondent knows that at the relevant time between December 2000 and March 2001 the Applicant had been directed by a delegate of the Commissioner not to notify any person of the investigation.
5.1.1.2 the First Respondent knows that the Applicant has breached no Interpol policy or guidelines.
5.1.1.3 the First Respondent knows that Interpol does not intend to take any administrative or disciplinary action against the Applicant in respect of the matters being investigated by the AFP, and
5.1.1.4 the First Respondent knows that Interpol is at risk of having any termination of the Applicant quashed by a French court,
5.2 It will be an exercise of a personal discretionary power at the direction or behest of another person, namely Ronald K Noble, the Secretary General of Interpol, and Michael Palmer, the then Commissioner of the AFP.
5.3 The First and Second Respondents do not have jurisdiction to make the decision;
5.4 The First and Second Respondents have not followed procedures required by law to be observed in connection with the making of the decision;
5.5 The decision is not authorised by the enactment in pursuance of which it is purported to be made;
5.6 The making of the decision involves an error of law;
In that the First and Second Respondents -
5.6.1 have not followed the procedures set out in the Complaints (Australian Federal Police) Act and the Australian Federal Police Discipline Regulations in relation to the handling of allegations of breaches of discipline;
5.6.2 have purported to find disciplinary allegations against the Applicant substantiated when he has not been charged with a disciplinary charge nor given the opportunity to have the charge heard and determined by the Australian Federal Police Disciplinary Tribunal, and
5.6.3 did not provide to the Applicant proper particulars of the allegation he was required to answer prior to the direction given to the Applicant on 18 December 2000 by Federal Agents Beck and Killmier to answer questions, contrary to Commissioner's Order 6 s.8(2).
5.7 A breach of the rules of natural justice has occurred in connection with the making of the decision, in that-
5.7.1 the First Respondent is perceived to be biased in that -
5.7.1.1 on or about 29 January 2001 he received from the Commissioner a Minute in which the Commissioner said that he found the allegation against the Applicant substantiated, that there was a presumption of unsuitability for employment and that this could only be overturned by an overwhelming vote of confidence from the Secretary General and satisfaction that there was no possibility that such conduct would re-occur,
5.7.1.2 in February and March he received an order from the Commissioner to terminate the Applicant's secondment to Interpol.
5.7.1.3 he is aware that the Commissioner told the Secretary General in February 2001 that it was the AFP's intention to terminate the Applicant's secondment to Interpol and return him to Australia at the first available opportunity,
5.7.1.4 he is aware that by letter dated 14 May 2001 the Secretary General encouraged the First Respondent to terminate the Applicant's secondment to Interpol,
5.7.1.5 he is aware that by letter dated 14 June 2001 the Secretary General asked the First Respondent to terminate the Applicant's secondment to Interpol, and
5.7.1.6 in an affidavit sworn on 14 June 2001 and filed in these proceedings, the First Respondent in par.25 has stated his opinion that the Applicant's position with Interpol is not "untenable' and that there are resource implications in maintaining the Applicant in France, thereby prejudging the decision yet to be made;
5.7.2 the First Respondent intends to take into account material relating to an email of 3 August 2000 entitled "Bad Boy Bubby" which has not been the subject of any request to the Applicant to put submissions to the First Respondent;
5.7.3 the First Respondent intends to take into account the views of the Secretary General in circumstances where -
5.7.3.1 the Applicant has never been asked to make submissions on those views,
5.7.3.2 despite asking the First Respondent for copies of documents recording those views on 23 and24 May 2001, the Applicant has never been given any documents recording those views until the First Respondent's affidavit sworn on 14 June 2001 was filed and served in these proceedings,
5.7.3.3 the Applicant was unaware fo the Secretary General's views until the First Respondent's affidavit sworn 14 June 2001 was filed and served in these proceedings;
5.7.4 the First Respondent intends to rely on a telephone interview of the Applicant conducted under Commissioner's Order 6 by Federal Agents Beck and Killmier of Internal Investigations on 18 December 2000 in circumstances where -
5.7.4.1 the Applicant was given no proper particulars of the allegation that he was required to answer,
5.7.4.2 the Applicant was not given copies of the emails and Guidelines on which he was to be directed to answer questions, and
5.7.4.4 the First Respondent has already made findings as to the Applicant's credit based on an interview conducted by telephone rather than in person or by videolink.
5.8 The making of the decision involves an improper exercise of the power conferred by the enactment under which the decision is purported to be made, in that the First Respondent has failed to take into account a relevant consideration, namely the Complaints (Australian Federal Police) Act and the Australian Federal Police Discipline Regulations in relation to the handling of allegations of breaches of discipline.
202 I have dealt with paragraph 7 earlier, see [138] above.
203 No decision has been made to recall Mr Eaton from Lyon. What is complained of is what was proposed to be done. In a sense all this is now history. By the litigation process Mr Eaton has become aware of all relevant matters, though, of course, he can only use documents and information gained from the use of the Court's powers for production for the purposes of this litigation, unless leave is given for a wider purpose.
204 However, the case was fought on the basis that what was foreshadowed by the letter of 21 May 2001 ([97] above) was legally flawed. I must decide whether the applicant is correct in that contention. In my view he is correct. First, he had not been provided with Mr Palmer's views. For the reasons which I have earlier expressed in relation to the Fourth Decision, this failure infects what was proposed to be done. Secondly, the failure to provide Mr Eaton with Mr Noble's then views deprived Mr Eaton of information relevant to the foreshadowed decision. Mr Overland identified what he said he was going to take into account in the letter of 21 May. This was said to be limited to Ms Beck's report ([26] above), Mr Eaton's March response ([74] to [76] above) and the directive dated 18 March 1999 ([176] above). Yet four days before he had written to Mr Noble saying:
I can assure you that your views in relation to the conduct subject of the internal investigation will be given very careful consideration in the decision making process. ...
205 I have discussed this matter earlier ([83] to [86] above). As I said earlier, I am reluctant to characterise Mr Overland's evidence as untruthful. However, I do not accept that he was intending his letter to Mr Noble to be limited in the way he sought to explain in his evidence. Mr Noble at that time plainly wanted Mr Eaton recalled. In the context of writing to Mr Noble about a decision concerning Mr Eaton's recall from Lyon, Mr Overland said that he would give very careful consideration to the views of Mr Noble. That was not only logical, but also highly appropriate. Yet Mr Overland deliberately told Mr Eaton something inconsistent with that. That had the effect of misleading Mr Eaton in an important respect.
206 I do not think that Mr Overland chose his words carelessly. It may be that he thought he could tell Mr Noble one thing and then do another - that is exclude from his consideration the views of Mr Noble in the same manner as he said he did with Mr Palmer's views. Such an exclusion would, it seem to me, be as unrealistic and as equally prone to error as the "exclusion" of Mr Palmer's views. Even if Mr Noble's views had some difficulties, they were the views of Mr Eaton's superior who apparently wanted him withdrawn from the posting, that being the very matter Mr Overland was to consider. The relevance of Mr Noble's views to the proposed Fifth Decision is reflected in the desire of the respondents at the interlocutory hearing to put these views before me as a reason why I should not restrain the decision-making process.
207 As I said, I do not accept this evidence of Mr Overland about his letter to Mr Noble as untruthful. The hearing was conducted with vigour and bluntness. Mr Overland gave his evidence in a way which I think he saw as appropriate to meet and deal with that approach by the cross-examiner. I have earlier commented on that approach ([84] and [86] above)
208 In my view, the letter to Mr Eaton of 21 May 2001, in so far as it identified what Mr Overland would take into account, was inaccurate and misleading in that I find that Mr Overland did intend to "give very careful consideration in the decision making process" and in that way "have regard to" Mr Noble's views in relation to Mr Eaton's conduct the subject of the internal investigation.
209 Any decision to recall Mr Eaton from Lyon in these circumstances and in the circumstances of the failure to provide Mr Eaton with Mr Palmer's views would have been flawed by the failure to make known a clearly relevant matter being taken into account.
210 I now deal with the balance of the matters as set out in paragraph 5 of the application.
211 As to 5.1.4 and 5.2, I reject the proposition that Mr Overland was acting for Interpol's purposes or under direction. See [139] to [142] above.
212 As to 5.3 to 5.6 and 5.7.4, I reject the proposition there contained that the disciplinary regime should by law have been used or that any defect in the particulars for the 18 December interview was still operative. See [168] to [175] above.
213 As to the complaint about "Bad Boy Bubby" in 5.7.2 of the application, Mr Overland in his reasons of 4 June 2001 recognised that "[t]his matter was not specifically put to FA Eaton in my notice to him of 9 March 2001 and he had not specifically referred to it in his reply dated 26 March 2001" Mr Overland said in the memorandum of 4 June that he had not considered this email as a breach of AFP's policy; but he did use it as part of his reasoning in the rejection of Mr Eaton's statements. Mr Overland said the following in the memorandum:
In relation to the material forwarded from the Interpol address (e-mail number 2) it is not at first clear, either in the record of interview or FA Eaton's response of 26 March 2001, whether this was an accidental or deliberate act. There are a number of relevant points about this e-mail that emerge on closer reading of the record of interview.
214 That there was a lack of clarity in Mr Eaton's response of 26 March may well have been brought about by the fact that he was not directed to the matter. Nevertheless the minute continued:
At questions 339 to 341 FA Eaton agrees that it was inappropriate to use the Interpol networks to send material of this description. At question 143 it is established that FA Eaton's work computer had details of FA White's work e-mail address but not his private e-mail address [address provided] which is one of White's private e-mail addresses. FA Eaton claimed to be unaware this was White's private e-mail address.Based on these answers it appears that FA Eaton intentionally forwarded this e-mail (e-mail number 2) to FA White's work e-mail address. In fact, this seems to me to the only logical conclusion based on the above information. It is certainly not open to conclude that this e-mail was the result of a mis-direction as FA White's private e-mail addresses are not on the Interpol system.
215 This matter was not put as an aspect of the claim to vitiate the Fourth Decision. Rather it was put as part of the failure to give natural justice in relation to the Fifth Decision.
216 The real complaint is that questions concerning the email have been used in formulating reasoning concerning the other emails identified as capable of giving foundation to substantiation of a conclusion as to the inappropriate use of the email system. Mr Overland was not prevented from using the facts and material surrounding the "Bad Boy Bubby" email, and especially Mr Eaton's answers in relation thereto, as part of his overall consideration of the facts, in circumstances where he had not been told that it was a foundation for the allegation. Mr Overland was using information provided by Mr Eaton as part of his reasoning process. This does not enliven a separate and distinct obligation to accord procedural fairness in relation to this use: see generally Pilbara Aboriginal Land Council v Minister for Aboriginal And Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539.
217 This complaint is not a basis to conclude that the foundation for the proposed Fifth Decision was flawed.
218 I need not repeat my view about the complaint concerning the use of the interview of 18 December 2000 (see [147] above).
219 I deal with the question of apprehended bias below after dealing with the Sixth Decision.
THE SIXTH DECISION
220 The Sixth Decision which is said to be proposed to be made is to take disciplinary action against the applicant.
221 The application set out virtually identical complaints to those directed at the Fifth Decision. For that reason no point is served in setting out the parts of the application concerning it or in separately analysing the Sixth Decision, with the exception of one point. The minute of 21 May does not threaten what is identified as the Sixth Decision. The matters identified as the subject of future decisions are redeployment from Lyon and suitability for continued employment with the AFP.
222 Thus the Sixth Decision need not be separately dealt with.
THE FUTURE
223 For the reasons I have given earlier the Fourth Decision was flawed. Also, the circumstances under which Mr Overland was intending to deal with the matter further were flawed. However, the parties have, in a sense, moved on. Mr Eaton now has a full appreciation of the facts; though, as I said earlier, much of this information comes with an implied undertaking to the Court not to use it for purposes other than the litigation.
224 The AFP may now wish to return to the matter and deal with the question of Mr Eaton's conduct and his future with the AFP. That, of course, is open to the AFP. The applicant seeks limitations upon this. He seeks orders that Mr Overland and Mr Keelty be prohibited from taking any action to implement or progress the First to Sixth Decisions. I do not think this is necessary. The Fourth Decision is flawed. I have made clear my views on the Fifth and Sixth Decisions. The applicant also seeks an injunction to restrain Mr Overland from having any further involvement in any decisions relating to Mr Eaton's secondment to Interpol or the matters investigated by the AFP the subject of these proceedings. In other words, if the matter is to be the subject of further consideration, others in the AFP including Mr Keelty, but not Mr Overland, may deal with it.
225 The applicant argues that he is entitled to such injunctive relief against Mr Overland because Mr Overland suffers from the apprehension of bias. As can be discovered from the application the apprehended bias is said to be founded on:
(a) the failure to disclose Mr Palmer's views (4.2; 5.7.1.1. 5.7.1.2, 5.7.1.3; 6.2.1.1, 6.2.1.2);
(b) the failure to disclose Mr Noble's views (5.7.1.4, 5.7.1.5; 6.2.1.3, 6.2.1.4); and
(c) the expression of view in an affidavit in these proceedings that the applicant's position with Interpol was not "now tenable" (5.7.1.6; 6.2.1.5)
226 As I have said, the hearing before me was conducted by the applicant through his counsel in a vigorous and blunt manner. That is not intended as a criticism of the applicant or counsel. It was put to Mr Overland in cross-examination that some of his evidence was untruthful. I have dealt with that. The matters raised in the application have to be understood in the context of the hearing. At least in relation to Mr Noble's views, the hearing was conducted on the basis that Mr Overland did intend to take these matters into account and misled Mr Eaton by his letter of 21 May 2001. I have found that Mr Overland's letter of 21 May to Mr Eaton was inaccurate and in that sense misleading.
227 In these circumstances, the question arises as to whether Mr Overland should be prevented from participating further because of apprehended bias.
228 It was not contested that Mr Overland, as a future decision-maker, was required to be free from bias, both actual and ostensible or apparent or perceived. No case was pleaded that he was actually biased. There was an allegation in the application in paragraphs 1.2.2 and 2.2.2 that the whole process of giving Mr Eaton an opportunity to be heard was a sham and that Mr Overland was simply implementing the views of Mr Palmer and Mr Noble. That matter was expressly abandoned and disavowed at the beginning of the hearing.
229 The general test for bias is whether the relevant circumstances are such as would give rise, in the mind of a fair minded and informed person, to a reasonable apprehension or suspicion of a lack of impartiality on the part of the decision-maker: Webb v R [1994] HCA 30; (1994) 181 CLR 41; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70. However, the operation of this test, as part of the content of the requirements for procedural fairness, may vary according to the particular circumstances of the case, including the nature and general function of the entity required to observe them and the relationship between that entity and the person to whom procedural fairness must be accorded: see Laws, supra at p 90, where Deane J also said:
Plainly, such variations may occur in the content of the requirement that a tribunal required to observe procedural fairness be not tainted by either the actuality or the appearance of disqualifying bias. Thus, acquaintanceship with or preconceived views about a party of a kind which would create the appearance of disqualifying bias in a judge exercising the judicial power of a court of law may be permissible and unobjectionable in a statutory body which, while required to accord procedural fairness in the discharge of a particular function, is entrusted with other functions which necessitate a continuing relationship with those engaged in a particular industry.
230 See also Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 75 ALJR 277 at [4].
231 This difference in application was recently made clear in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 75 ALJR 679 at [95] to [105] and [177] to [187].
232 A decision-maker such as Mr Overland is not required entirely to lack preconceived views. He does not have to come to the matter entirely neutral: Jia, supra at [179]. He does not have to be free from prior involvement with the decision: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352. Merely because a decision-maker has wrongly failed to provide information to a party, which a court believes should have been provided before making a decision so as to accord procedural fairness, does not lead to a conclusion that a fair minded person would reasonably apprehend that the decision-maker will not deal with the matter impartially or fairly or listen to and take into account, in a genuine way, any further material provoked by the provision of the necessary information. This is so even if a decision has been made. In one sense the decision has been "judged"; but the decision has been, on this hypothesis, set aside. It has to be decided again. The question is whether there is a reasonable apprehension that the decision to be made again will not be undertaken or made impartially and fairly.
233 The question of apprehended bias arises here for serious consideration in the light of the fact that not only did Mr Overland not provide Mr Eaton with Mr Palmer's and Mr Noble's views (matters of a kind which would not usually be sufficient to found the complaint), but also Mr Overland misled Mr Eaton in relation to what he intended to take into account.
234 I have not made a finding that Mr Overland knew that he was misleading Mr Eaton, though I reject, as I said earlier, his explanation of what he was referring to in his letter of 17 May 2001 to Mr Noble (see [84] above). I am, and was at the hearing, troubled by Mr Overland's evidence in this regard. It is otherwise clear, from his own affidavit, that he saw, to a degree, Mr Noble's views as relevant to his decision concerning the future deployment of Mr Eaton (see [128] above). It is difficult not to conclude that he must have known that the 21 May memorandum was inaccurate. However, I think it is sufficient for present purposes to conclude that a fair minded and informed observer could have the reasonable apprehension or suspicion that Mr Overland knew that he was misleading, and that he had deliberately misled, Mr Eaton. In those circumstances, I think a fair minded observer would be led to have a reasonable apprehension or suspicion that Mr Overland would not bring to his task an impartiality and fairness which would be otherwise expected of him. I do not see this as a two stage process of a reasonable apprehension: of the underlying fact and the bias. Rather, I think that the facts raise a sufficiently serious question about whether he would be seen as likely to approach the matter fairly. In those circumstances, I think it is not necessary to make a finding of fact on the question whether Mr Overland knew that he was misleading Mr Eaton, that is whether he did so deliberately.
235 For the above reasons a case has been made out for restraining Mr Overland from further participating in this decision concerning Mr Eaton.
236 No relevant matter has been identified which could in any way be a foundation for any conclusion that Mr Keelty has contributed to any administrative error attending the handling of this matter or that he suffers from any apprehension of bias.
237 The parties have put in various submissions about costs. There was a debate as to who should pay the costs of the interlocutory proceedings. In the light of my views I see no reason why the first respondent should not pay the applicant's costs of the interlocutory proceedings. They were properly brought. The matter could have been dealt with by way of continuing undertakings. Nothing further needs to be said about these costs.
238 The respondents complain about the conduct of the proceedings. The respondents say that even if the applicant is successful on one particular ground they should recover their costs in respect of those issues resolved in their favour. I have jurisdiction and power to make such a differential costs order. That is without doubt. While the applicant abandoned reliance on the allegation of sham and while the applicant abandoned separate reliance on the first three decisions, those matters did not, it seems to me, lead to any shortening of the hearing. Rather, they cleared some ground before the battle took place concerning the real contest. That real contest, though pleaded in a complex and entangled way, really did focus upon the failure of Mr Overland to provide Mr Eaton with Mr Palmer's views and Mr Noble's views and how these matters did, or did not, form part of his decision making process. Further, I think it is very relevant to the question of costs that Mr Overland did not frankly and openly set out in his affidavit the process of the decision making in the respects disclosed in his evidence at [56] above. As I have earlier indicated, it was left until the end of cross-examination before he disclosed the important change which took place in March 2001. I think much of the heat generated in this case has been based upon Mr Eaton's perception that Mr Overland was not being frank with him. It is unfortunate, but to a degree I think he could be forgiven for that. In saying that I should not be taken as concluding that Mr Overland was actually biased against Mr Eaton. That matter was not pleaded. I do not make a finding about that matter.
239 On balance the first respondent should pay the costs of the applicant, including any reserved costs and including the costs of the interlocutory hearing.
240 The second respondent was joined. While I can see that it might be said that that joinder was necessary should it be concluded that the first respondent was his delegate, he really played no part in the decision. I do not think that his joinder led to any increase in costs and for that reason I will not make a separate order for costs in respect of him.
241 As to the orders, no party has submitted that I lacked power to set a decision aside if I found it to be otherwise flawed.
242 As to the claims for certiorari under s 39B of the Judiciary Act, no submission was put to me that it was not otherwise available. The availability of certiorari in the High Court in suits brought under s 75(v) of the Constitution has been discussed on a number of occasions. No argument was placed before me as to the power in the Federal Court to order certiorari.
243 The course which I propose to take is to make a declaration and orders which arise out of the matters which I have discussed. If the parties are of the view that it is necessary to debate the question of the availability of certiorari or whether an order formally setting aside the Fourth Decision should not be made the matter can be relisted for argument after written submissions are filed by each party within 21 days of the making of the orders which I propose to make. It may be that the parties can agree the form of any variations to the orders which I have made. For this reason I will order that these orders not be entered for a period. The above is not an invitation to revisit the issues generally.
244 The orders which I will make are as follows:
(a) A declaration that the decision of the first respondent made on about 21 May 2001 to concur with the recommendation of the investigating officer that the allegation that Mr Eaton was a party to inappropriate use of the AFP email system contrary to the AFP National Guidelines for the Use of Electronic Mail of 14 July 1999 was substantiated, and so to decide that question, was made without providing the applicant with procedural fairness according to law.
(b) An order setting aside that decision.
(c) The first respondent be restrained from further participation in any decision or decision making process concerning the applicant arising out of or connected with the subject matter of the investigation carried out concerning the sending of emails by the applicant in August to November 2000.
(d) The first respondent pay the applicant's costs including the costs of the interlocutory proceedings.
(e) That these orders not be entered until the earlier of the expiration of 28 days or further order.
(f) The parties have liberty to apply on 5 days notice.
I certify that the preceding two hundred and forty-four (244) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. |
Associate:
Dated: 21 December 2001
Counsel for the Applicant: |
Mr J Purnell SC with Mr Erskine |
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Solicitor for the Applicant: |
Porter Parkinson and Bradfield, Canberra |
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Counsel for the Respondent: |
Mr J Basten QC with Mr Howe |
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Solicitor for the Respondent: |
Australian Government Solicitor, Canberra |
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Dates of Hearing: |
20-23 August 2001; last submissions received 13 September 2001 |
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Date of Judgment: |
21 December 2001 |
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