FREEDOM OF INFORMATION - exempt documents - legal professional privilege - confidential communications between solicitor and client - criminal proceedings - whether release of documents could prejudice a fair trial - whether release of documents could lead to witness tampering.

Freedom of Information Act 1982 - ss 21, 22, 37, 42

Evidence Act 1995 - ss 117-126

Director of Public Prosecutions Act 1983 - s 9(11)

Attorney General v Maurice [1986] HCA 80; (1986) 161 CLR 475

Carbone v National Crime Authority (1994) 52 FCR 516

Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501

Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63

Dunesky & Bay Wool Pty Ltd v Elder [1992] FCA 216; (1992) 35 FCR 429

Esso Australia Resources Limited v Federal Commission of Taxation [1999] HCA 67; (1999) 168 ALR 123

Waterford v Department of the Treasury [1985] FCA 29; (1985) 7 ALD 93

1. The applicant was a senior employee in the Bond Group Companies in Perth. As a result of certain transactions carried out within that group, monies belonging to Bell Resources Limited, a company then controlled by the Bond Group but containing a significant number of outside shareholders, was diverted to purposes other than those of Bell Resources. Following investigations, charges were brought against Mr Bond, Mr Mitchell, Mr Beckwith and Mr Oates. Each was charged with conspiring with each other, and with the applicant, and with other unnamed persons to defraud Bell Resources.

2. These charges were dealt with at committal hearings. Subsequently, indictments were brought against Mr Bond and Mr Mitchell, both of whom pleaded guilty. Following a series of appeals, their cases have now been finalised. Mr Beckwith died. Mr Oates fled to Poland, where he has continued to resist efforts to have him extradited to Western Australia. If he returns, further investigations may be carried out.

3. Against this background, the applicant sought access under the Freedom of Information Act 1982 to documents which she described in her letter of 4 September 1998. Omitting formal parts, this letter was in the following terms:

"I hereby request the following documents held by the DPP or its officers:

1. Any and all documents which may refer to the Applicant in person and/or in respect of her employment with Bond Corporation Holdings Limited.

2. Without wishing in any way to limit the nature of documents requested, such documents may reports, internal notes, witness statements, records of interview, pre trial briefs, briefs to advise, minutes of meetings, copies of court transcripts relating to the Preliminary Hearing conducted in connection with the charge mentioned below, warrants, legal briefs and/or requests for surveillance, telephone monitoring, mutual assistance, press releases, media releases, background press interview notes, information reports.

3. In addition to this request, requests for access to information have been directed to the Federal Police, Attorney General and ASC.

I request access in the form of copies of documents.

In the event that this application does not comply with the requirements of the Freedom of Information Act, then I request that you take reasonable steps to assist me to make an application which complies with the requirements of the Act.

It is also requested that the application fee and any subsequent fees in relation to this request be waived pursuant to s.30a of the Act. This is because:

* The imposition of a fee would cause me financial hardship. I do not currently have an income, as a result of stigma arising from the matters the subject of my research. If I am unable to research the matter, it amounts to a denial of natural justice.

The granting of access is in the public interest for the following reasons:

1. The open availability of information is vital to confidence in the administration of justice in Australia.

2. In January 1995, I was shocked and surprised to find that I had been named in a charge of conspiracy to defraud as a non-indicted co-conspirator with Alan Bond, Peter Alexander Mitchell, Antony Gordon Oates and the others and the details of this charge were published worldwide.

3. I received no prior advice that such dishonourable mention was being contemplated.

4. It is not in the public interest that citizens can be accused of serious crimes by law enforcement authorities without being given the opportunity to defend themselves.

5. I have no idea how such an allegation could possibly be made against me and wish to understand same so that I may clear my name.

I understand that I can expect acknowledgment of receipt of this application within 14 days and a notification of a decision within 30 days. Should your decision be to refuse access to any documents sought, full reasons pursuant to s.26 of the Act are hereby sought."

4. Following negotiations intended to define the desired documents with more precision, Ms Noonan wrote again to the respondent on 30 September 1998 in the following terms (omitting formal parts):

"I hereby request the following documents held by the DPP or its officers:

a) Prosecution statements by the following persons held with respect to a charges against Alan Bond, Peter Mitchell and Tony Oates.

b) Briefs to and advice from Counsel settling the terms of the charge and in relation to the charge, but in so far only as they refer to Maureen Noonan or to her mention in the charge.

c) Internal DPP documents that record or refer to the decision to include the name of Maureen Noonan as a co-conspirator in the abovementioned charge.

d) Any other documents which may be known to Mr S.D. Hall and which were relevant to the decision of the DPP to mention the applicant in the charge.

In addition to this request, requests for access to information have been directed to the Federal Police, Attorney General and ASC.

I request access in the form of copies of documents.

In the event that this application does not comply with the requirements of the Freedom of Information Act, then I request that you take reasonable steps to assist me to make an application which complies with the requirements of the Act.

A cheque for the application fee of $30 is enclosed.

I understand that I can expect acknowledgment of receipt of this application within 14 days and a notification of a decision within 30 days. Should your decision be to refuse access to any documents sought, full reasons pursuant to s.26 of the Act are sought."

5. By letter dated 5 October 1998, the respondent took this letter to be an amendment of the earlier request rather than being additional to it. This assumption appears to have been accepted by Ms Noonan.

6. At the same time that she made the amended request, she wrote another letter dated 30 September 1998 setting out her reasons. This letter, omitting formal parts, was in the following terms:

"I have considered the contents of your letter of 17th September carefully, and against the background of your behaviour over the last 10 years.

1. A further request for information under the Freedom of Information Act is enclosed.

2. It is my belief that you have no intention of providing me with the information sought if you can avoid doing so and have no intention of giving favourable consideration to my request for a waiver of fees no matter how much information or supporting evidence is supplied to you... Rather, that you intend to use it as an excuse to deny me information.

a) The passing of the Freedom of Information Act was an acknowledgment that it is in the public interest that members of the public have access to government information and that open and accountable government is in the public interestt.

b) Open and accountable government is a fundamental pillar of a democratic society and therefore in the public interest of a democracy.

c) In paragraph 4.11 of ALRC Report 77, it is stated:

"There is generally a public interest in individuals have access to information about themselves. The fact that a document contains information about an individual should weigh in favour of that document being disclosed to that individual. This is acknowledged in the Queensland FOI Act..."

d) It is accepted in cases on natural justice that where a person's interests are to be affected they have a right to be informed and to be given the opportunity to address matters affecting their economic or personal welfare. Natural justice is explicit recognition that it is in the public interest that individuals not be submitted to persecution in secret and that they be given an opportunity to defend their interests.

e) It has been expressly acknowledged in Treaties and Conventions to which Australia is a party, that it is not in the public interest that individual citizens be subjected to torture

f) As a public official, information you hold is not acquired or generated for your own benefit but for purposes related to the legitimate discharge of your duties of office and for the service of the public. It is therefore a natural resource and should be available to the public in the public interst.

It is my belief that you are well aware that disclosure of relevant documents to me is in the public interst for all of these reasons and that you are seeking to mislead me by stating that it cannot be reasonably asserted that a public interest issue exists.

I do not believe that additional charges of any type should be made as this would further exacerbate your denial of natural justice to me. You are doing no more than a long neglected duty to give me the information requested.

I do not believe substantial work is involved in the processing of the request, as you could reasonably be expected to be well aware of relevant documents, if not the content of every page, when accusing someone of a billion dollar fraud, especially when permitted 10 years and unlimited resources as you have been.

It is therefore both absurd and unfair to seek to rely on your own profession of ignorance. You also stand the chance of making a complete fool of yourself if you seek to assert at any public level the denial of information to me is justified because of an unreasonable diversion of resources. It might become apparent that it might have been one of the few worthwhile investments of resources you could have made in the last 10 years.

Alternatively, if it is true that you do not know where to start, it is an admission of gross incompetence. The quantity of files that you mention is no more than a librarian or teacher of moderate ability is asked to be familiar with every year of their working lives. Once again without the time and resources that you have been allotted.

For all of these reasons, I have therefore concluded that once again you are not being honest in your response and are seeking to manufacture reasons why you should not supply me with information.

The terms of my request and the documents sought.

I seek access to those documents that would enlighten me as to why I was accused of the crime that I was and only those.

As you would well know, it is beyond my knowledge as to which documents exactly that might be as I have no idea how you reached the conclusion that you did, no knowledge of the full extent or content of documents you hold, how you index and cross reference or what you call them. It is therefore difficult for me to specify them.

It is clear from the terms of your letter that you propose to take advantage of that in your efforts to deny me access and will continue to squander public funds in obstruction. My latest application therefore starts at the with what specific requests can be made at this point, so that I can use the trial and error approach.

The terms of my previous request were meant as a courtesy to you in limiting the documents to which I was seeking access and to make it clear that I am seeking to clarify only items relating to my dishonourable mention, either specifically by name or by inference because of mention of my title or "she", a nickname etc. I also mistakenly thought that the way it was put would make it easy for you. I do not seek access to anything which does not impact on that and which relates either to Messrs Bond or Mitchell or to the unresolved prosecution of Mr Oates, or any other matter. For the time being, it would seem to be the DPP files that might clarify matters for me. As well as documents which record or refer to the decision to include my name as a co-conspirator, I would like to understand where the idea came from so that I can attempt to correct it and people's perception of me. If it is from malicious former employees of Bond, then I would like to confront them about it. If someone mistakenly drew conclusions, then I would like to have the opportunity to make representations seeking to correct them. It is hard at this time, for me to see the relevance of any original documentation you hold as potential exhibits."

7. The material contained in the last paragraph of the letter was important in a claim for exemption later to be made based on subsection 37(2)(a) of the Act. That paragraph provides that a document is an exempt document if its disclosure under the Act would or could reasonably be expected to prejudice the fair trial of a person. I will deal with the way in which this claim for exemption was put forward later in these reasons. The principal claim, however, was made under section 42. This provides that a document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

8. The first part of Ms Noonan's request sought access to witness statements of named parties. Twenty such statements were identified as falling within the terms of the request. There were three of Mr Devries, two of Mr Nicholson, three of Mr Beregi, three of Mr Benson, two of Mr Thomas, three of Mr Trenear, two of Mr Farrell, one of Mr Nizzola and one of Mr Swan. A further statement of Mr Baker came to light shortly before the hearing.

9. Because she had received copies of them from the authors of the statements, she did not seek access to, and the respondent did not claim exemption in relation to, five of the statements, being the first statement of Mr Devries, the second statement of Mr Nicholson, the three statements of Mr Trenear and the statement of Mr Nizzola.

10. The paragraphs (b), (c), (d), of the amended request resulted in 12 documents, or groups of documents, being identified. Claims for exemption were made in relation to each of them under section 42. They all consisted of correspondence with counsel, notes of conferences with counsel, draft charges sent to counsel for advice, instructions to counsel to provide advice on a number of legal issues, memoranda of advice from counsel and minutes of a meeting attended by lawyers from the respondent (among others) at which counsel's advice was received and discussed.

11. As I have said, section 42 exempts from disclosure any document that would attract legal professional privilege in "legal proceedings". The doctrine of legal professional privilege applies in proceedings in this Tribunal, although they cannot strictly be described as legal proceedings. Because this Tribunal is not a Federal Court as defined in the dictionary in the Evidence Act 1995, that statute does not form the body of law applied in this Tribunal on this subject. The common law of legal professional privilege continues to be applied. If the term "legal proceedings" is intended to define the body of law that obtains in Courts, then that is now codified in sections 117-126 of the Evidence Act 1995.

12. Because of developments in the law, it matters less now than it did previously whether section 42 should be read with reference to the common law or to the statute. The decision of the High Court in Esso Australia Resources Limited v Federal Commission of Taxation [1999] HCA 67; (1999) 168 ALR 123 has moved the common law closer to the Evidence Act, although the Court did hold that the common law was not modified by that Act. As in the statute, however, the Court has now declared that a document which was created for the dominant purpose of seeking or providing legal advice or for the dominant purpose of use in legal proceedings attracts a claim of privilege. Legal professional privilege is not defined in the Freedom of Information Act. Accordingly, section 42 operates by reference to the general law.

13. Report number 77 of the Australian Law Reform Commission, being a review of the Act, included as recommendation 66 a proposal that section 42 should be re-drafted to provide that a document is exempt if it was created for the sole purpose of seeking or providing legal advice or for use in legal proceedings. In view of the decision in Esso, it must now be unlikely that this recommendation will be accepted.

14. There is no public interest element in a claim for legal professional privilege (Waterford v Department of the Treasury [1985] FCA 29; (1985) 7 ALD 93). The same report of the Australian Law Reform Commission rejected a submission that such a test should be introduced as it was of the view that maintenance of legal professional privilege is inherently in the public interest.

15. Ms Noonan submitted that none of the witness statements attracted legal professional privilege because they did not consist of confidential communications. In her submission, as the persons concerned had agreed to give evidence knowing that it might be used in preliminary hearings and that the statements might be shown to other people, the statements could not be categorised as confidential.

16. In my view, this submission is misconceived. Any material gathered by a solicitor for his client, for the dominant purpose of litigation is privileged as if it were a confidential communication between solicitor and client (Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 at 66).

17. Witness statements and communication with counsel with a view to existing or possible future litigation classically attract claims of legal professional privilege. The fact that some of the potential witnesses have agreed to allow their statements to be made available to Ms Noonan does not vitiate this claim. The privilege is that of the client (in this case, the Australian Securities and Investments Commission). That privilege cannot be waived by others.

18. Ms Noonan, in fact, submitted that privilege had been waived because of the fact that some of the statements were tendered during the committal proceedings and at the subsequent trials. Evidence was given by Mr Hall, a former senior assistant director in the Perth office of the Commonwealth Director of Public Prosecutions. On this subject he said:

"To the best of my knowledge, information and belief the statements referred to above were only disclosed once criminal proceedings had been commenced against Bond and Mitchell and then only to defence solicitors in accordance with the Crown's obligations of disclosure in criminal proceedings. Some were tendered at the committal proceedings (in hard copy) and all were tendered to the Supreme Court (on compact disk). The tendered statements formed part of the court record but it is my understanding that they were not then, and are not now, available for inspection by the public. There were also appeal proceedings in the Supreme Court and the High Court but to the best of my knowledge the statements did not form part of the papers with regard to those proceedings. On each occasion when the statements were provided it was only for the limited purpose associated with the proceedings at hand and not general disclosure. It was also the case that each witness had a copy of his or her own statement. This was in accordance with usual practice and witnesses were not given the statements of other witnesses. No one else was provided with a copy of the statements and no copies were made available to the media. No press statement was ever made by the DPP regarding the contents of statements. Nor, to the best of my knowledge was any such press statement made by the Australian Securities Commission ("the ASC") or the Australian Federal Police ("the AFP"). The statements were only disseminated to those within the AFP, the ASC and the DPP who had responsibilities in respect of the matter. The statements were only made available to those within the DPP who had a need to know of the statements and their contents. To the best of my knowledge the statements were not disclosed by the DPP to the liquidators of any companies in the former Bond group or their lawyers.

5 To the best of my knowledge, information and belief in relation to the extradition proceedings against Oates, all proceedings that took place in Australia in connection with the application were held in camera and the disclosure of those documents was for the limited purpose of the extradition proceedings."

19. In cross examination, he explained that in Western Australia the preliminary hearings were administrative in nature and were not conducted "in open Court". The statements could not be obtained from the Court by Ms Noonan. In any event, they would have been returned to the prosecution at the end of the preliminary hearing. Not all the statements were tendered. It is common ground that only three of Mr Benson's, two of Mr Thomas' and three of Mr Trenear's were used in the committal proceedings. Evidence was given by the Registrar of the Supreme Court that the electronic version of the evidence tendered in that Court could not be accessed by a non-party.

20. Ms Noonan then submitted that there had been a waiver because the contents of the statements had become widely known in the press. In support of this submission, she tendered a large number of newspaper clippings. All of these dealt with the subject matter of the statements in a general way. None of them reproduced any part of the relevant statements. Ms Noonan carries the practical onus of persuasion in the sense that once a claim for privilege has been made out, any exemption from that entitlement must be established by her. She must show a voluntary and intentional act by the person in whom the privilege resides (Attorney General v Maurice [1986] HCA 80; (1986) 161 CLR 475). There is no evidence that ASIC has voluntarily and intentionally waived its client professional privilege. With respect to waiver, the language of section 122(2) of the Evidence Act confirms the common law requirement of a knowing and voluntary disclosure.

21. Furthermore, there is no waiver if the disclosure is required by law. Thus, the filing and service of statements for the purpose of the preliminary hearing so as to give notice to the accused of the matters to be brought against them, would have been required by law and would not have amounted to any waiver.

22. The fact that the litigation necessarily did not exist at the time that the witness statements were prepared from interviews with potential witnesses does not negate any claim for privilege, as was pointed out by Hill J in Carbone v National Crime Authority (1994) 52 FCR 516 at 529. In preparing the statements, the Director of Public Prosecutions is deemed by subsection 9(11) of the Director of Public Prosecutions Act 1983 to be acting as solicitor for the authority it represents (Dunesky v Elder [1992] FCA 216; (1992) 35 FCR 429 at 431). As such, preparation of statements for the dominant purpose of intended litigation, creates a claim for privilege available to the client.

23. Ms Noonan's principal submissions, however, were directed to allegations that claims for legal professional privilege had been defeated because of the presence of improper purposes surrounding the documents. In Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501 at 514, Brennan CJ said (omitting references):

"In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest. I state the criterion as "reasonable grounds for believing" because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something "to give colour to the charge", a "prima facie case" that the communication is made for an ulterior purpose. The purposes that deny the protection of privilege for a communication (whether documentary or oral) between a client and the client's solicitor or counsel include the furthering of the commission of any offence."

24. This statement of the common law is replicated in section 125 of the Evidence Act as follows:

"125.(1) This Division does not prevent the adducing of evidence of:

(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(b) a communication or the contents of a document that the client or lawyer (or both), or the party, know or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:

(a) the fraud, offence or act, or the abuse of power, was committed; and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power;

the court may find that the communication was so made or the document so prepared.

"power" means a power conferred by or under an Australian law."

25. Ms Noonan made many submissions on this subject. They may, however, be reduced to three general headings. Firstly, she submitted that witnesses had been induced to fabricate or to exaggerate their proposed evidence in order to support the prosecution. The basis of this allegation appeared to be that Ms Noonan did not agree with some of the things that had been said by those witnesses whose statements she had obtained, and did not think that the other witnesses had given a true account of her involvement. Had they done so, she reasoned, she would not have been named as an un-indicted co-conspirator. Allegations of tampering with witnesses are serious and can be upheld only upon strong probative evidence put forward in support. Assertions by Ms Noonan are not sufficient for this purpose. She did not advance any evidence of wrongdoing by DPP officers towards potential witnesses, but merely made these statements. Furthermore, as in all the headings of improper purpose, there must be proof of wrongdoing in relation to a particular document. Ms Noonan must show that any document for which exemption is claimed under section 42 has been created in furtherance of fraud or in furtherance of any offence or act rendering a person liable to pecuniary penalty, or where it was known or ought reasonably to have been known that the communication was made or the document prepared in furtherance of a deliberate abuse of power. There must be a direct connection between the creation of the document and the abuse of power. There has not been any criminal purpose of knowing abuse of power established to my satisfaction, either generally or in relation to any particular document.

26. The second improper purpose alleged by Ms Noonan was that in the course of the deliberative process leading up to the bringing of charges, she was denied natural justice. She contends that she should have been given an opportunity of confronting any material relating to her so that she could "correct wrong information". Ms Noonan, who is obviously quite troubled by these matters, regards this as a "conscious decision to punish me for not doing as I was told". She alleges that not only the respondent, but also ASIC as the deemed client, acted contrary to policy guidelines which normally afford opportunities to be heard in relevant circumstances.

27. I appreciate that Ms Noonan finds herself in a difficult situation as a person named in a conspiracy charge. It is not, however, a conspiracy charge against her. She is named because the prosecution was under an obligation to give such particulars as were available to it to the defendants Bond and Mitchell and will be to the defendant Oates so that they had and have particulars of the charge brought against them. As an un-indicted co-conspirator she had no right of representation in the committal proceedings and had no right to seek particulars of any allegations of conduct with which she was said to be associated.

28. These are proceedings in accordance with Western Australian law. The fact that an un-indicted co-conspirator is placed in this position is a matter that is regulated by the general law of the State. One can understand the reason for it. If she had been given an opportunity to correct errors, as she put it, then the administration of criminal justice could be damaged. There would be a danger of evidence being destroyed or tampered with, witnesses being interfered with, or even leaving the jurisdiction to avoid legal process. There were, in any event, efforts made to interview Ms Noonan. The conditions which she imposed for her cooperation made that course impossible. The respondent was not prepared to give an outright indemnity as a condition of interviewing her. In my view, no improper purpose based on a denial of natural justice has been demonstrated and certainly, no such improper purpose has been demonstrated in relation to any particular document.

29. The third improper purpose alleged by Ms Noonan is that of intimidation and harassment. She gave evidence that she had been contacted by a British Secret Service Agent in Vienna. From her account of cryptic conversations she had with him, she feared that she might be killed if she went to Poland where Mr Oates was awaiting extradition. She pointed to some evidence that her travel movements at the Australian border had been obtained by ASIC. She concluded that there had been a sharing of intelligence between the British Intelligence Agency and ASIC and that her physical wellbeing was in danger. She believed that she was under surveillance and all her movements were being noted by the respondent. She believed that the documents in question would make reference to these facts and that if they were not scrutinised, there would be "no check on my persecution".

30. There was no evidence upon which I could act that Ms Noonan was being intimidated or harassed by the respondent or by ASIC. It was stated by the respondent's counsel and by counsel for ASIC, without dispute, that their clients expressly denied any surveillance activity and any knowledge of surveillance by any other body or person. Such a denial was not really necessary because all that had emerged from Ms Noonan were statements from the bar table of an unsubstantiated kind.

31. The only possible harassment that has emerged during these proceedings is the likely harassment which Ms Noonan would cause to witnesses with whom she disagreed, such as Mr Devries. None of these allegations of intimidation or harassment were put to the respondent's witnesses and the applicant's assertions do not constitute any probative evidence of the facts alleged.

32. The respondent also claimed exemption for the documents, particularly those relating to communications with counsel, under section 37(2)(a). Mr Oates has yet to be brought to trial. Much of the material falling within the terms of the applicant's request would be used in that trial. There is, therefore, a high and unacceptable risk of prejudice to a fair trial. This arises because of the statement of Ms Noonan in her explanatory letter than she would confront witnesses to correct their perception of her. In evidence she continued to maintain that she was entitled to confront these people. She said "It is part of the process of defending myself". She asked what harm there was in talking to these witnesses because "they know they will have to be cross examined in public. They coped with me confronting them everyday.". This evidence merely reinforces a perception that the trial of Mr Oates could seriously be expected to be prejudiced, and indeed aborted, if witness tampering took place.

33. I have read all the documents and I am in a position to assure Ms Noonan that none of them contain any patent indication of harassment. Her name is mentioned from time to time, sometimes incidentally, sometimes in more detail, but always in a legitimate manner. I have considered the possibility of deletion of all material except that material relating to Ms Noonan, pursuant to section 22 of the Freedom of Information Act. I have concluded, however, that it is not reasonably practicable to do so. What would be left would be virtually meaningless.

34. The use of the word 'reasonably" in section 37 implies an obligation to consider the public interest when deciding whether the exemption applies. I consider that release of an edited version of the documents would be contrary to that public interest as it would be outweighed by the greater public interest of ensuring the fair trial of an accused.

35. I have also considered deferring access to certain documents pursuant to section 21 and have rejected this, principally because Ms Noonan indicated that she did not want deferment. In her view, if access was to be delayed until after the Oates trial and appeals had been concluded, then she would be worse off and "the damage would have been done". The respondent also opposed a deferment of access.

36. I have concluded that the claims for exemption have been made out and the decision under review is therefore affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

Signed: .....................................................................................

Solicitor for the Respondent Principal Legal Officer, Cth DPP