Case: Barton v The Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477
Outcome: cited
I do not consider that the applicants have made out any reasonable cause to believe they have an arguable case for the reading down of s 8 of the AFP Act . I should add for the sake of completeness that it may be the case that, even if the AFP Act were to be read down as contended for, it would not prevent members of the AFP from making the request they did in the absence of legislative authority: cf Barton v The Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 at 490. It is unnecessary to express any view on this. 72 A distinct way in which the applicants had proposed challenging the propriety of the AFP members' conduct in making the two requests was to contend that that conduct did not comply with the requirements of the Death Penalty Charge Guide such that, arguably, those members committed disciplinary offences under reg 4 of the Australian Federal Police (Discipline) Regulations 1979. It was not made at all apparent how, even if such disciplinary offences could have been made out, this would have availed the applicants. 73 As I understand the applicants' supplementary submissions they no longer rely upon breach of the Guide and Discipline Regulations. However, I should make the following comments in any event. First, and subject to what I later say, the Guide, on its face, may well be only of indirect relevance in this matter in that its substantive content is directed to how AFP members are required to act in relation to requests for assistance made of it by a foreign country. It is silent on requests made by the AFP of an overseas law enforcement agency. Secondly even if the standards prescribed in the Guide (with appropriate adaptation) be taken as the operative ones when a request is made by the AFP and I consider this was probably their intendment the conduct of the officers concerned in this case (whoever they may have been beyond Mr Hunniford) could not properly be said to have been relevantly in breach of the Guide as it related to "police to police" cooperation. The requests made and the information provided pre-dated the INP investigations and the arrests and detention of the applicants. In consequence it pre-dated any "charges being laid which may attract the death penalty" irrespective of how the term "charges" should be interpreted in the Guide as it applied to the formalities of the Indonesian legal system. Finally there was, as I have indicated, authority for the AFP members to make their request under the AFP Act and that in turn was translated into a practical arrangement with Indonesia in the Police Cooperation MoU under which, according to Mr Watson, the actual requests were made. The MoU is not in evidence before me for the reasons I earlier gave. Nonetheless, counsel for the applicant was provided with the opportunity to inspect the MoU or to have the Court inspect it, but declined to take either course. Counsel for the Commissioner has nonetheless indicated to the Court that the terms of the MoU contemplated the very provision of information by the AFP in circumstances such as in this matter and it could properly be said of the MoU that there was a standing request by Indonesia for such assistance. In the above circumstances, I am prepared to accept (a) that the applicants cannot claim reasonably to believe that the information provided to Indonesia was totally unsolicited and (b) that, possibly, the AFP in providing the information was acting upon a general request by Indonesia. However, for the reasons I gave above, I do not consider it to be of any consequence whether the request was made by the AFP or by Indonesia. The AFP members acted in conformity with the Death Penalty Charge Guide. 74 Despite their various and varying formulations of a potential cause of action based on what compendiously I have called acting without lawful authority, I am not satisfied that the applicants have been able to identify or articulate any reasonable cause to believe that they are or may be entitled to obtain relief in this Court under this rubric.