Burns v Chief of the Defence Force [2024] FCA 781 | Case summary

Unlawful use of the video recording? 58 It bears repeating that the video recording to which WGCDR Lucas referred in making the decisions under review was not that seized under warrant issued pursuant to s 101X of the DFDA. It was the video recording seized from the complainant after search under s 101W of the DFDA by an investigator after obtaining, in accordance with s 101ZA, her consent to the search. Further, the conduct of that search and the obtaining of that consent did not entail any derivative use of anything obtained under the search warrant issued pursuant to s 101X. 59 That distinction is not necessarily fatal to the ground of review which challenges the ability of WGCDR Lucas lawfully to refer to the video recording for the purposes of making the termination decisions. It does, however, mean that it is necessary to understand the meaning and effect, in context, of s 101ZA before dealing with the submissions made in respect of this ground. 60 By s 101W(1) of the DFDA, it is provided: Search and seizure (1) An investigating officer may search a defence member or defence civilian, or clothing being worn by, or property under the immediate control of, a defence member or defence civilian, and may seize anything found in the course of the search that the investigating officer believes on reasonable grounds to be connected with a service offence if, and only if, the search and seizure is made by the investigating officer: (a) in pursuance of a search warrant issued under section 101X or 101Y. (b) in accordance with section 101P or 101Z; or (c) after obtaining, in accordance with section 101ZA, the consent of the defence member or defence civilian, as the case may be, to the search. 61 Section 101ZA provides: Consent to search (1) Before obtaining the consent of a person for the purposes of section 101W, an investigating officer shall inform the person that the person may refuse to give his or her consent. (2) An investigating officer who obtains the consent of a person for the purposes of section 101W shall ask the person to sign an acknowledgement, in accordance with the prescribed form: (a) of the fact that the person has been informed that the person may refuse to give his or her consent; (b) of the fact that the person has voluntarily given his or her consent; and (c) of the date on which, and the time at which, the person gave his or her consent. (3) A search or entry and search, as the case requires, by an investigating officer by virtue of the consent of a person is not lawful unless the person concerned voluntarily consented to the search or entry and search, as the case may be. (4) Where it is material, in any action or proceeding, for a civil court or service tribunal to be satisfied of the voluntary consent of a person for the purposes of section 101W and an acknowledgment of the kind referred to in subsection (2) signed by the person is not produced in evidence, the civil court or service tribunal, as the case may be, shall presume, unless the contrary is proved, that the person did not give such a voluntary consent. 62 The prescribed form is Form 9: s 50 and Sch 1, Defence Force Discipline Regulations 2018 (Cth). That provides for a consent to "in relation to the investigation of a service offence". As she records in her statement, the complainant signed a Form 9 prior to the search and seizure of her mobile telephone and the related access to and obtaining of the video recording referred to by WGCDR Lucas. WGCDR Lucas was entitled to, and did, proceed on the basis that the video recording she viewed was obtained via such a consent from the complainant. 63 Related to this, there is no submission that it should be presumed, pursuant to s 101ZA(4) of the DFDA, that there was an absence of voluntary consent by the complainant. 64 On its face, the purpose of s 101ZA is to reduce the prospect of controversy, in any proceeding under the DFDA in respect of a service offence, as to whether a search and any related seizure of a particular thing was consensual. It does this by providing for documentary evidence of an informed, voluntary consent by a person, while also incorporating a rebuttable presumption of involuntariness if there is no such written consent. That is both protective of a person said to have provided something to investigators and conducive to the obtaining of such evidenced consent by investigators. It is necessary to say "reduce", because the possibility exists that, in a given case, a Form 9 apparently evidencing such a consent may itself have been given involuntarily. There is no suggestion of that in this case. 65 Regard to extrinsic materials confirms that this is the purpose of s 101ZA and also reveals its provenance. 66 Part VI of the DFDA, in which s 101W and s 101ZA are found, was inserted into the DFDA by s 44 of the Defence Legislation Amendment Act 1984 (Cth). From the Explanatory Memorandum circulated by the then Minister for Defence, the Honourable Gordon Scholes MP, it is apparent (pp 20-21) that Pt VI was introduced in anticipation that like rights, safeguards and powers would form part of a Criminal Investigation Bill proposed to be introduced (in succession to an earlier Criminal Investigation Bill 1981, which had lapsed when Parliament was dissolved in February 1983) but which could not be brought into force before the DFDA was to be brought into force. The intent was that those suspected of the commission of a service offence should enjoy like rights to those suspected of the commission of a federal or Australian Capital Territory criminal offence. As it happens, that proposed Criminal Investigation Bill was not introduced but the anticipated regime has remained in Pt VI of the DFDA. In turn, it is evident that the Criminal Investigation Bill 1981, and thus the replications found in Pt VI of the DFDA, was responsive to a recommendation (at [205]) made in a report of the Australian Law Reform Commission: ALRC, Criminal Investigation, (Interim Report, No 2, 1975). Regard to this report confirms what a reading of s 101W(1) ("if and only if") in conjunction with s 101ZA and s 101ZB would suggest, which is that all searches and seizures are unlawful, unless compliant with the procedures specified in Pt VI. These procedures materially include an evidenced, voluntary consent given under s 101ZA, subject to a discretion, conferred by s 101ZB, exercisable by a service tribunal, in the circumstances of a given case, nonetheless to allow evidence so obtained to be admitted. 67 At the forefront of the Applicants' submissions was the proposition that a judgment given by Atkinson J in Flori v Commissioner of Police [2015] 2 Qd R 497 (Flori) should be applied by analogy to the end of concluding that the termination decisions were tainted and should be quashed by reason of an unlawful reference to the video recording obtained by an officer of the JMPS for the purposes of the investigation of an alleged service offence. 68 In Flori, the applicant was a Queensland Police Service (QPS) officer who was suspected of committing certain offences. The QPS had applied for and was granted a warrant to enter and search the applicant's premises under s 150(1)(a) of the Police Powers and Responsibilities Act 2000 (Qld) (the PPR Act). The purpose of that search warrant was to obtain evidence for the purpose of investigating certain criminal offences. During the execution of the search warrant, the QPS seized certain evidence, including computers. Ultimately, the QPS decided not to prosecute any criminal charges against the applicant, but instead to commence disciplinary proceedings against him for misconduct. The applicant sought injunctive and declaratory relief restraining the QPS from using the property seized under the search warrant or the post search approval order, or data, evidence or information derived from it in the disciplinary proceedings. That relief was granted. 69 Flori is noteworthy for a comprehensive discussion by Atkinson J of some undoubtedly pertinent authority. The principle derived (at [27]) by her Honour from this discussion was that, "Where information or material is obtained under compulsion authorised by statute, the use that can be made of that information or material is limited by the statute." Having regard to Australian Securities and Investments Commission v Rich (2005) 52 ACSR 374 (Rich), at [305] per Austin J, her Honour stated (at [39]) that a "freely formed consent of the owner of seized documents to their prospective use in a proposed civil proceeding for the owner's potential benefit is effective to remove the constraint that would otherwise prevent their use in civil proceedings". Because Mr Flori had given no such consent, her Honour concluded that it was not lawfully possible for the QPS to use the information obtained pursuant to the search warrant granted under the PPR Act otherwise than for the purposes of consequential criminal proceedings. 70 At first blush, Flori does look so ostensibly similar as to require the upholding of this ground of review. 71 The Applicants starting premise in pressing for this conclusion was that the text of Pt VI demonstrated that the purpose of the search and seizure power was confined to the investigation of service offences. So much should be accepted, as to the exercise of that power. Part VI provides no authority to conduct a search, be that under warrant or by s 101ZA consent, for the purpose of obtaining material which may inform whether to exercise the termination power granted by s 24(1)(c). But it does not necessarily follow that Pt VI is exhaustive of the use which might lawfully be made of material obtained as a result of the exercise, for the purpose of the investigation of service offences, of the search power. 72 The Applicants' further submission was that this purpose is not limited only to the procedure established by search warrants but extends to the procedure created for giving consent to search. They submitted that, properly construed, consent provided pursuant to s 101W(1)(c) and s 101ZA was, relevantly, the provision of consent to search property and seize "anything found in the course of the search that the investigating officer believes on reasonable grounds to be connected with a service offence." In this manner, they sought to meet the consensual exception as to collateral use, acknowledged in Rich and Flori, by submitting that the use of material obtained as a sequel to consensual search and seizure was necessarily limited by the purpose for which that consent was given. 73 These further submissions, too, should be accepted, but again subject to a possible exception. Section 101W affords the same status to a search pursuant to a s 101ZA consent as it does to a search under warrant. It is clearly s 101W, and the attending purposes for exercising the powers in that section, that is determinative, in the sense that s 101W is the authorising provision for the search and seizure powers. Section 101ZA does no more than provide a framework to guide the exercise of the power that is contained in s 101W(1). The consent in Form 9 which the complainant gave was "in relation to the investigation of a service offence", nothing more and nothing less. 74 Acceptance of these propositions is necessary but not sufficient to make out the Applicants' case. It is necessary, in light of the CDF's submissions, to consider the possibility that there is an applicable public interest use exception to the use limitation which flows by implication from s 101W, s 101ZA and the terms of the Form 9 consent. 75 Explaining why that is so requires quite some excursion into authority both in Australia and in the United Kingdom. Some of those authorities were addressed by Atkinson J in Flori. However, the possibility of a public interest use exception was not raised before her Honour by the QPS and therefore not addressed by her. 76 Like Atkinson J in Flori, I commence with the general proposition, discerned by Brennan J (with whom Dawson, Gaudron and McHugh JJ largely agreed) in Johns v Australian Securities Commission (1993) 178 CLR 408 (Johns), that the use which may be made of material obtained by a statutory process is dictated by the statute concerned, properly construed. Thus, at 423, his Honour stated: … when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself by limited by the purpose for which the power was conferred. In other words, the purpose for which power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated or used. In Marcel v. Commissioner of Police of the Metropolis Sir Nicolas Browne-Wilkinson V-C said, in reference to a statutory power conferred on police to seize documents: 'Powers conferred for one purpose cannot lawfully be used for other purposes without giving rise to an abuse of power. Hence, in the absence of express provision, the Act cannot be taken to have authorised the use and disclosure of seized documents for purposes other than police purposes.' [Footnote references omitted] 77 It is necessary to say more about Johns, as it is the most relevant High Court authority in this area, albeit not directly on point. Johns involved, in part, a challenge by the appellant to the use of transcripts of interviews he was subject to under the Australian Securities Commission Act 1989 (Cth) (repealed) (ASC Act) by a State Royal Commission inquiring into the same subject matter. The ASC Act provided for an express confidentiality obligation on the Australian Securities Commission (ASC) in s 127. Further, it also expressly provided for the release of examinations under s 25. The ASC had purported to release the examination transcripts to the Royal Commission under either or both of s 127 and s 25 through an ASC officer who was seconded to the Royal Commission. 78 In what is arguably the leading judgment in Johns, Brennan J went on to say, at 424, "[a] statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed." (emphasis added). Here, Brennan J recognises the possibility that the relevant purpose can be express or implied. Certainly, in Johns, the relevant statutory provisions provided express purposes for the use of the information obtained by the ASC. However, the DFDA does not have any like confidentiality regime. This means that any limitation on the use of information obtained under Pt VI must be made by implication. 79 Similarly, Dawson J stated, at 436, that "[t]here is also a general rule that where a body has statutory powers to compel the provision of information to it, it should not disclose the information except for the purposes for which the powers were conferred. … But in this case, the purposes for which disclosure may be made are specifically set out in the Act." (emphasis added). Again, Dawson J identified that a critical part of Johns was the express provision of a confidentiality regime and related disclosure powers in the ASC Act. This is not the case with the DFDA. 80 In terms of using implication to derive an appropriate purpose of the use of information obtained under statute, McHugh J stated, at 467, "[a] statute conferring compulsory powers of examination is strictly construed. It is construed as authorizing only those actions which are necessary to give effect to the purpose for which the power is conferred and whatever is reasonably incidental to that purpose." (emphasis added). The scope left by McHugh J for acts that are "reasonably incidental" to the purpose of the power further supports the proposition that implication has a role in determining the existence and scope of any confidentiality regime related to statutory powers. 81 Therefore, while Johns concerns a comprehensive statutory regime, it by no means forecloses on the role of implication in determining whether an obligation of confidence exists and the contents of such an obligation. This is particularly so in the context of this proceeding where the DFDA, and more specifically Pt VI of that Act, does not provide for an express confidentiality regime. This absence elevates the importance of both the statutory provisions authorising the obtaining of information (as discussed above) and the common law of confidentiality as established by Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 (Marcel) (as discussed below). 82 A like point was made by Hely J in Williams v Keelty (2001) 111 FCR 175, where his Honour stated: … it would be consistent with general principle to hold that it would be improper for documents seized pursuant to the warrant to be used for any purposes outside those comprehended by the warrant. This conclusion was reached after consideration of Grollo v Macauley (1995) 56 FCR 533, in particular the comments by Northrop and Ryan JJ, at 551 - 552. 83 Given the issues in the present case, it is necessary to refer to more of what Sir Nicolas Browne-Wilkinson V-C said in Marcel than just the passage, at 234, cited in Johns, and also to refer to what was stated in the subsequent appeal to the Court of Appeal. To give context, it is desirable to set out, from the headnote in Marcel, a summary of the background facts. In the course of a criminal investigation concerning a property development, the police seized documents from the plaintiffs pursuant to powers contained in Pt II of the Police and Criminal Evidence Act 1984 (UK) (1984 Act). The plaintiffs were witnesses in two civil actions (the main actions) brought in connection with the property development. At the instance of the solicitors acting for Mr Jaggard, the defendant in those actions, a subpoena duces tecum was issued requiring the police to produce at the trial of one of the actions certain documents concerning the criminal investigation which Mr Jaggard wished to use as evidence, including documents which had been seized from the plaintiffs. The police allowed a representative of the solicitors to inspect and copy some of those documents before the subpoena was served. The documents, some of which were the subject of legal professional privilege, were produced by the police at court on the first day of the hearing of the actions, and some of those that had been disclosed to the solicitors were read out in open court. The plaintiffs, who objected to the use of the documents in the actions, then issued proceedings against the Commissioner of Police of the Metropolis and Mr Jaggard and his solicitors, and on the plaintiffs' motion Browne-Wilkinson V-C made an order requiring Mr Jaggard and the solicitors to deliver up to the commissioner copies obtained by them from the police, of the plaintiffs documents, restraining the use by Mr Jaggard and the solicitors of information obtained from those documents except such as had already been read out or referred to in open court, and setting aside the writ of subpoena. 84 In Marcel, at 235, Browne-Wilkinson V-C also stated: In my judgment, subject to any express statutory provision in other Acts, the police are authorised to seize, retain and use documents only for public purposes related to the investigation and prosecution of crime and the return of stolen property to the true owner. Those investigations and prosecutions will normally be by the police themselves and involve no communication of documents or information to others. However, if communication to others is necessary for the purpose of the police investigation and prosecution, it is authorised. It may also be, though I do not decide, that there are other public authorities to which the documents can properly be disclosed, for example to City and other regulatory authorities or to the security services. But in my judgment the powers to seize and retain are conferred for the better performance of public functions by public bodies and cannot be used to make information available to private individuals for their private purposes. It follows that in my judgment it was not lawful for the police to make the documents seized available to Mr. Jaggard's solicitors for the private purposes of Mr. Jaggard's litigation against the company. [Emphasis in original] 85 On the subsequent appeal in Marcel, also reported at [1992] Ch 225, that order was set aside, but not because of any error in what Browne-Wilkinson V-C had stated, at 234 or 235. Instead, it was concluded that, while there were restrictions on the voluntary use to which the police could put documents seized by them under the 1984 Act, and notwithstanding any duty of confidentiality owed by the police to the owners of documents so seized, the plaintiffs could have been required by subpoena to produce in court, at the trial of the main actions, documents seized from them by the police if those documents had still been in their possession, or copies of them if they had been supplied with such copies by the police. Of the members of the Court of Appeal, Dillon and Nolan LJJ concluded that the police, in response to the order of the court represented by the subpoena duces tecum duly issued, were bound to produce in court the plaintiffs' documents seized by them, except documents, including those the subject of legal professional privilege, although the plaintiffs had a legitimate ground of challenge to the latter. The remaining member, Sir Christopher Slade, took a different path but to the same end, referring to a need for the proper balancing by the court in its discretion of the competing public interests in ensuring the observance of the obligation of confidentiality and in ensuring that any trial should be conducted on full evidence required such production by the police; and that, therefore, except as regards the privileged documents, the judge's order should be set aside. 86 It is not necessary for present purposes further to detail the reasons why the order was set aside in Marcel. What is presently important is what was said by the Court of Appeal of the observations made by Browne-Wilkinson V-C at 235. Dillon LJ, at 256, expressed general agreement both with the passage from the judgment of Browne-Wilkinson V-C at 234 (cited in Johns), as well as the further observations his Lordship made, at 235. In so doing, Dillon LJ added, at 256, "But I agree with these views solely in relation to the voluntary use by the police of documents seized under the [1984 Act] which are the property of other persons." I interpolate that, in the present case, the video recording accessed by WGCDR Lucas remained the property of the complainant. 87 Nolan LJ agreed with the reasons of Dillon LJ, and, notably for present purposes, added, at 261: The statutory powers given to the police are plainly coupled with a public law duty. The precise extent of the duty is, I think, difficult to define in general terms beyond saying that the powers must be exercised only in the public interest and with due regard to the rights of individuals. In the context of the seizure and retention of documents, I would hold that the public law duty is combined with a private law duty of confidentiality towards the owner of the documents. 88 Sir Christopher Slade, at 263, stated: Further, the relevant sections would, I think, authorise acts which were reasonably incidental to the pursuit of those primary purposes, thus including in appropriate circumstances the disclosure to third parties of seized documents. 89 Thus, as cited and understood in Johns and Flori, Marcel certainly stands for the proposition that, "when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself by limited by the purpose for which the power was conferred": Johns, at 423 per Brennan J. Indeed, this proposition is often now referred to as the "Marcel principle". The additional observations by Browne-Wilkinson V-C, at 235, were undoubtedly obiter. However, their correctness was not just unaffected by the fate of the subsequent appeal but endorsed on that appeal. 90 Thus, Marcel also stands for the proposition that it by no means follows that there can be no additional uses of information obtained by or under statutory process. The correctness of this additional proposition is borne out by subsequent authority. Indeed, it is not so much an additional proposition as a concomitant of a principle which is grounded in what follows by necessary implication from the terms on which an information gathering power is conferred by statute. Of course, the extent to which wider disclosure might be made would necessarily be affected by the terms of the particular statutory regime. If the regime for the obtaining of the information also contained a charter listing out those to whom wider disclosure might be made, it may be difficult, if not impossible, to imply a yet wider class, no matter how compelling a public interest in that disclosure may seem. The latter is not a consideration in this case, because Pt VI of the DFDA contains no such wider disclosure charter. 91 So understood, and as will also be seen, the "Marcel principle" is analogous to the implied undertaking to a court restricting collateral use of documents obtained on discovery and inspection under the rules of court, for which Harman v Secretary of State for the Home Department [1983] 1 AC 280 is the root authority (hence the term, "Harman undertaking"), and to the circumstances in which a court will release a party from that implied undertaking. The strength of the analogy is highlighted by recalling a pithy but accurate description of the underlying rationale for the undertaking offered by McPherson J in Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, at 510, "a document furnished for use for one purpose may not legitimately be used for another." In Australia, more recent High Court authority holds that the implied undertaking is better understood as a substantive obligation of law: Hearne v Street (2008) 235 CLR 125, at [3] per Gleeson CJ, and at [96] and [105] to [108] per Hayne, Heydon and Crennan JJ. Thus, although the term "Harman undertaking" retains much local currency, its use must, in Australia, carry with it that understanding. 92 The aptness of such an analogy was recently accepted in the United Kingdom by Nicklin J in Baroness Lawrence of Clarendon v Associated Newspapers Ltd [2023] EWHC 2789 (KB). That was a case arising from an endeavour to use, in litigation, documents obtained under statutory process during the Leveson Inquiry in that country. Nicklin J stated, at [297]: Where statutory powers to compel the production of documents from an individual have been used for a public inquiry, there is a corresponding expectation that any confidentiality in those documents will be appropriately respected. Ultimately, the public inquiry may decide that any confidentiality in documents that are provided is outweighed by a countervailing interest, but until such determination is made the party disclosing the documents and the inquiry share a common interest in appropriately protecting any confidentiality. Whilst the disclosing party has obvious private interests in maintaining confidentiality, the inquiry must also consider the broader public interest in the proper administration of justice, particularly the candour principle. It is not in the public interest for an individual in possession of documents that are potentially relevant to, and could assist with, a public inquiry to be discouraged from providing them in response to a s.21 Notice by a fear that the inquiry will not properly take into account any confidentiality interests. The analogy with the restrictions on collateral use of documents disclosed in legal proceedings is a powerful one because the underlying policy considerations are very similar. 93 As to this statement and with respect to the present case, it might equally be said, by analogy and in favour of acceptance of the Applicants' submission, that it is important that those who would be disposed to assist with the investigation of an alleged service offence by the giving of a consent pursuant to s 101ZA of the DFDA should not be discouraged from providing that consent by a fear that the investigators will not properly take into account any confidentiality interests. 94 Before looking further to analogy, it is helpful in addressing the merits of the Applicants' submission, and the CDF's riposte, to consider authorities in the United Kingdom before and after Marcel concerning the further disclosure of material obtained pursuant to a statutory process. 95 A starting point for that consideration is R v Licensing Authority Established under Medicines Act 1968; Ex parte Smith Kline & French Laboratories Ltd [1990] 1 AC 64. As related (at 103) by Lord Templeman, who delivered the judgment of the House of Lords, the issue to be determined on that appeal was "whether English law prohibits the licensing authority from having recourse to the confidential information provided by the appellants in the course of their application for a product licence relating to cimetidine for the purpose of considering whether to grant or reject an application by Generics or Harris or anyone else for a product licence in respect of cimetidine." In explaining why it was that the licensing authority was entitled to make additional use of the information provided, Lord Templeman stated (at 103-4): It is essential for the licensing authority to compare the applications of the first and subsequent applicants in order to satisfy themselves that both products are similar, safe, effective and reliable. The licensing authority cannot discharge its duty to safeguard the health of the nation and its duty to act fairly and equally between applicants without having recourse to all the information available to the licensing authority, confidential or otherwise. Indeed it would not be practicable and it would be highly dangerous for the licensing authority to attempt to segregate in the case of each applicant the information which was confidential to that applicant and to forget or ignore that information when carrying out any function imposed upon the licensing authority by the Act of 1968 in the interests of the public. My Lords, I am satisfied that it is the right and duty of the licensing authority to make use of all the information supplied by any applicant for a product licence which assists the licensing authority in considering whether to grant or reject any other application, or which assists the licensing authority in performing any of its other functions under the Act of 1968. The use of such information should not harm the appellants and even were it to do so, this is the price which the appellants must pay for cooperating in the regime designed by Parliament for the protection of the public and for the protection of the appellants and all manufacturers of medicinal products from the dangers inherent in the introduction and reproduction of modern drugs. … If the appellants choose to apply for a product licence under the Act, they choose to provide information to the licensing authority for the purposes of the Act. It is not unconscionable for the licensing authority to make use of that information in the public interest for the purposes of the Act, although it would be unconscionable for the licensing authority to disclose that information to third parties for other purposes. 96 A tempering consideration in relation to the CDF's riposte in this case, flowing from these statements by Lord Templeman, is that the use made by WGCDR Lucas as his delegate was not for the purposes of the DFDA but rather for the purposes of s 24(1)(c), a regulation made not under the DFDA but rather the Defence Act. 97 Later is In re Arrows (No 4) [1995] 2 AC 75 (Re Arrows). While it would be necessary in any event to refer to this case, that reference is given added significance by the fact that the judgment of the House of Lords was delivered by Lord Browne-Wilkinson, who had by then been elevated. The background to that case, as related (at 92) by Lord Browne-Wilkinson was as follows: The appellant was concerned with the running of a company. When it collapsed, he was examined by the liquidators under section 236 of the Insolvency Act 1986. There are transcripts of that examination. Acting under powers conferred by section 2(3) of the Criminal Justice Act 1987 the Serious Fraud Office ("the S.F.O.") required the liquidators to produce those transcripts with a view to the S.F.O. using them as evidence in criminal proceedings against the appellant. The liquidators applied to the Companies Court for directions and the judge ordered that transcripts should not be handed over to the S.F.O. except upon an undertaking not to use the transcripts in evidence in the criminal proceedings. The question is whether the judge (whose decision was reversed by the Court of Appeal) was entitled to impose such undertaking precluding the use of the appellant's answers as evidence in the pending criminal trial. 98 It is, in my respectful view, clear from the following statement by Lord Browne-Wilkinson in this case, at 98, that the obiter observations he had made in Marcel (at 235), as to additional uses which might lawfully be made of material obtained under statute for a particular purpose, commanded the agreement of the House of Lords (through the acceptance by counsel, Mr Lightman, of the proposition adverse to his case in the final sentence of the below quotation): Mr. Lightman submitted that where information is extracted from an individual under statutory powers such information can only be used for the purposes for which those powers were conferred. The person who so obtains the information owes a private law duty of confidentiality not to disclose such information to others: Marcel v. Commissioner of Police of the Metropolis [1992] Ch. 225. He accepts that, like any other duty of confidentiality, this duty is not absolute but the court has a discretion to override it in the public interest: Marcel's case. 99 Although the result in Re Arrows turned (see at 102) on what one might, with respect, see as the unremarkable proposition that a Marcel principle supported private duty of confidentiality necessarily yielded to a disclosure authorised or required by statute, its importance for present purposes is derived from its acceptance that the public interest might in any event support additional uses of information obtained under statute. That proposition offers some support for the submission made in this case by the CDF. 100 Yet more recent authority at ultimate appellate level in the United Kingdom is R (Ingenious Media plc) v Commissioners for Her Majesty's Revenue and Customs [2016] 1 WLR 4164. That case concerned the confidentiality obligation of Her Majesty's Revenue and Customs Commissioners (HMRC). HMRC had a statutory duty to keep information confidential unless its disclosure was made for the purposes of a function of the Revenue and Customs. A Commissioner had, albeit in good faith, given an "off the record" briefing to journalists about the tax "schemes" of Ingenious Media. This information was then reported in the media. Flowing from a conclusion that the briefing was not for the for the purposes of a function of the Revenue and Customs, it was held that there had been a breach of confidence. Lord Toulson delivered the judgment of the Supreme Court. The judgment of the Supreme Court includes these statements of principle: (a) at [17]: "Unfortunately the courts below were not referred (or were only scarcely referred) to the common law of confidentiality. The duty of confidentiality owed by HMRC to individual taxpayers is not something which sprang fresh from the mind of the legislative drafter. It is a well-established principle of the law of confidentiality that where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom it was received or to whom it relates not to use it for other purposes. The principle is sometimes referred to as the Marcel principle, after Marcel v Commissioner of Police of the Metropolis [1992] Ch 225. …" (b) at [18]: "The Marcel principle may be overridden by explicit statutory provisions. In In re Arrows Ltd (No 4) [1995] 2 AC 75, 102, Lord Browne-Wilkinson said: "In my view, where information has been obtained under statutory powers the duty of confidence owed on the Marcel principle cannot operate so as to prevent the person obtaining the information from disclosing it to those persons to whom the statutory provisions either require or authorise him to make disclosure."" (c) at [28]: "It is a cardinal error to suppose that the public law remedies and principles associated with judicial review of the exercise of administrative power, developed by the common law from the ancient prerogative writs, occupy the entire field whenever the party whose conduct is under challenge holds a public position. It is important to emphasise that public bodies are not immune from the ordinary application of the common law, including in this case the law of confidentiality. The common law is multi-faceted and remains the bedrock of the English legal system." 101 Drawing what was said in these later United Kingdom cases at ultimate appellate level together, and applying them to the present case, I conclude that the CDF and the investigators were under a duty of confidence, flowing from s 101W and the limited permission granted to them by the Form 9 consent given to them by the complainant under s 101ZA of the DFDA, only to use the video recording and the information derived from it for the purposes of the investigation and any later prosecution of a service offence, subject only to an exception which would permit in the public interest a wider use. Alternatively, but to no different end insofar as that duty of confidence was derived by necessary implication from the terms of Pt VI of the DFDA, especially s 101W and s 101ZA, that implication extended to a wider permissible use in the public interest. 102 Other post-Marcel cases in the United Kingdom, decided below ultimate appellate level, offer some guidance as to what may, in the public interest, be wider permissible uses. 103 Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 (QBD) arose from a use made by police of a photo of the plaintiff, taken while he was in custody suspected of shoplifting offences (of which he was later convicted). The police distributed the photo to shopkeepers in local area. The plaintiff sued the relevant Chief Constable for breach of confidence. The Chief Constable applied for summary dismissal. This was granted by Laws J, who concluded that the Chief Constable had a clear public interest defence available to the breach of confidence action (at 811). Although his Lordship accepted that a duty of confidence could arise when a photo of a suspect was taken in circumstances where his consent was not required, he concluded that in circumstances where the photograph was used reasonably and in good faith for the prevention and detection of crime, the investigation of alleged offences or the apprehension of suspects or persons unlawfully at large, the police would have a public interest defence to any action for breach of confidence (at 810). Lest it be thought otherwise, I should add that the consent to which his Lordship was referring was not a consent given under a regime where the alternative, were it not given, might be the taken of the photograph pursuant to some form of compulsory process. 104 Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25 (Woolgar) was a sequel to a police investigation into the death of an elderly person in a nursing home, which included interviewing a nurse. There were no charges laid. The police referred the matter to the nursing regulator, which then requested the interview transcript. The police asked the nurse for her consent to disclose the transcript. The nurse refused to provide consent and brought proceedings to obtain an injunction to prevent disclosure. The judgment of a unanimous Court of Appeal upholding a judgment dismissing the application for that injunction was delivered by Kennedy LJ. The question for resolution on the appeal was identified (at 29) by his Lordship in this way: The question which arises in this case is whether, if the regulatory body of the profession to which the suspect belongs is investigating serious allegations and makes a formal request to the police for disclosure of what was said in interview, the public interest in the proper working of the regulatory body is or may be such as to justify disclosure of the material sought. 105 The reasons why this question was answered adversely to the appellant are found at 36: Essentially [the plaintiff]'s submission was and is that when the plaintiff answered questions when interviewed by the police she did so in the reasonable belief that what she said would go no further unless it was used by the police for the purposes of criminal proceedings. The caution administered to her so indicated, and in order to safeguard the free flow of information to the police it is essential that those who give information should be able to have confidence that what they say will not be used for some collateral purpose. However, in my judgment, where a regulatory body such as U.K.C.C., operating in the field of public health and safety, seeks access to confidential material in the possession of the police, being material which the police are reasonably persuaded is of some relevance to the subject matter of an inquiry being conducted by the regulatory body, then a countervailing public interest is shown to exist which, as in this case, entitles the police to release the material to the regulatory body on the basis that, save in so far as it may be used by the regulatory body for the purposes of its own inquiry, the confidentiality which already attaches to the material will be maintained. As [the respondent] said in [its] skeleton argument: "A properly and efficiently regulated nursing profession is necessary in the interest of the medical welfare of the country, to keep the public safe, and to protect the rights and freedoms of those vulnerable individuals in need of nursing care. A necessary part of such regulation is the ensuring of the free flow of the best available information to those charged by statute with the responsibility to regulate." Putting the matter in Convention terms Lord Lester submitted, and I would accept, that disclosure is "necessary in a democratic society in the interests of … public safety or … for the protection of health or morals, or for the protection of the rights and freedoms of others". Even if there is no request from the regulatory body, it seems to me that if the police come into possession of confidential information which, in their reasonable view, in the interests of public health or safety, should be considered by a professional or regulatory body, then the police are free to pass that information to the relevant regulatory body for its consideration. 106 One might, in my view, without straining all features of the Marcel principle, paraphrase the argument accepted by the Court of Appeal in Woolgar in the passage quoted in a way which would support the use by WGCDR Lucas of the video recording. An ADF comprised only of those whom it is "in the interests of the Defence Force" to retain is necessary in the interests of the country, to defend Australia, which includes the protection of our rights and also those of Australia's allies. A necessary part of an ADF so comprised is the ensuring of the free flow of the best available information to those charged under s 24(1)(c) with the responsibility of deciding whether retention of a particular defence member is "in the interests of the Defence Force". 107 The last United Kingdom case to which I would refer is R v Chief Constable of the North Wales Police, Ex parte AB [1999] QB 396 (Ex parte AB). Although decided in a Divisional Court, the judgment was delivered by one of that country's greatest judges of the modern era, Lord Bingham. His Lordship offered, at 409 - 410, this statement of principle: When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty. This principle would not prevent the police making factual statements concerning police operations, even if such statements involved a report that an individual had been arrested or charged, but it would prevent the disclosure of damaging information about individuals acquired by the police in the course of their operations unless there was a specific public justification for such disclosure. This principle does not in my view rest on the existence of a duty of confidence owed by the public body to the member of the public, although it might well be that such a duty of confidence might in certain circumstances arise. The principle, as I think, rests on a fundamental rule of good public administration, which the law must recognise and if necessary enforce. 108 An appeal from the Divisional Court's decision was dismissed by the Court of Appeal: also reported at [1999] QB 396. 109 In the government of the Commonwealth, as in the United Kingdom, but explicitly in the Australian Constitution, public administration is not confined to civilian public administration. It includes military public administration. Under the Constitution, ultimate responsibility in respect of each aspect of public administration vests in the Governor General as the King's representative. That is via s 61 which vests the executive government, which includes civilian public administration, of the Commonwealth in the Governor General in that capacity and, as to military public administration, via s 61, which also includes military public administration, and s 68, which vests the command in chief of the ADF in the Governor General in that like capacity. In each instance, via s 62 and convention, the Governor General acts on the advice of the Federal Executive Council. The point therefore is that there is nothing materially different under Australian constitutional arrangements which would preclude the fundamental rule of good public administration discerned by Lord Bingham in Ex parte AB. And that principle offers the most satisfactory rationale for the proposition I derived from Woolgar in an earlier paragraph. 110 Such principles must of course yield to statutory provision to the contrary. As already mentioned, Pt VI of the DFDA does not contain any express charter of authorised wider recipients which might by implication limit disclosure to a yet wider class. It is not an acceptable approach to statutory construction to approach that task as if a statute were a "suicide pact" (cf Terminiello v. City of Chicago, 337 U.S. 1 (1949), at 37, per Jackson J). Thus, as Browne-Wilkinson V-C allowed might be so in Marcel, at 235, it is surely a necessary concomitant in respect of any information obtained under Pt VI of the DFDA that it may lawfully disclosed in the interests of national security to another agency of the Commonwealth or of a State or Territory. Or used by the CDF for the purposes of the defence of Australia. And that is surely not the limit of such additional, permissible use of information so obtained. 111 Not every obtaining of information in good faith and for the purpose of the investigation of a service offence pursuant to Pt VI of the DFDA will result in the institution of proceedings before a service tribunal in respect of a service offence. There may be many reasons for this. Perhaps the most common circumstance will be an insufficiency of admissible evidence to institute a proceeding where the onus of proof for a service chief to discharge is beyond a reasonable doubt (as required by s 141, Evidence Act 2011 (ACT), as applicable via s 4A, Jervis Bay Territory Acceptance Act 1915 (Cth) and s 146(1), DFDA). One of the punishments which a service tribunal may impose where a service offence is proved is dismissal from the ADF: s 68(1)(c), DFDA. Although termination under s 24(1)(c) serves a protective, not punitive, purpose, it is an unlikely construction of Pt VI of the DFDA that, once possessed of material which might (if it proved possible later to institute a proceeding for a service offence) result in dismissal from the ADF, the CDF is unable to make any other use of that material, even if it might persuade him or a delegate that a defence member should be given notice to show cause why his or her service in the ADF ought not to be terminated "in the interests of the Defence Force". The fundamental rule of good public administration discerned by Lord Bingham in Ex parte AB surely extends to the use of information so obtained for that purpose. Even where the reason why a service offence proceeding is unexplained, it is difficult to see how Pt IV of the DFDA by implication dictates that the CDF must quarantine information in his possession that may provide occasion for termination of service under s 24(1)(c). 112 It is neither necessary nor desirable to venture upon any attempted delineation of what may be the metes and bounds of this fundamental principle of good public administration in its application to disclosure of information obtained under Pt VI of the DFDA. It is only necessary to recognise that, whatever these may be, the use made by WGCDR Lucas as delegate of the CDF fell within them. That use was entirely in keeping with that principle and with uses contemplated by Browne-Wilkinson V-C in Marcel, at 235. 113 What follows then from this consideration of the further observations which Browne-Wilkinson V-C made in Marcel, and later authority, is that Flori is, for all its first blush attraction in support of this ground, distinguishable. The point taken by the CDF in this case was not taken by the QPS in that case. Although, for reasons given above, it is possible at a general level of abstraction to find some support in later authority for upholding this ground of review, the better view on the authorities, and having regard to the text, subject matter, scope and purpose of Pt VI of the DFDA, is that the point taken by the CDF is, also for the reasons given above, sound. The use of the video recordings by WGCDR Lucas was lawful. For this reason alone, the ground must fail. 114 As it happens, no different conclusion is occasioned by proceeding by analogy with authority concerning circumstances in which a court will release a party from a "Harman undertaking", so as to permit a wider use of information obtained pursuant to discovery or other court process. As to this, the position in relation to such release was definitively stated by Gordon J (with whom, Kiefel CJ, Gageler and Gleeson JJ, at [12], relevantly agreed) in Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235 (Shi), at [50]: The undertaking also may be dispensed with or modified by the court in appropriate circumstances, although that dispensing power is "not freely exercised" (83). A party may be released from the undertaking with leave of the court provided the party shows "special circumstances" (84). Contrary to the submissions made by counsel for Mr Shi, leave of the court is required before a party will be permitted to use material obtained in a civil proceeding in furtherance of a criminal investigation or to provide such material to an investigative agency (85). Taking such steps without having sought and obtained leave of the court contravenes the Harman undertaking. [Emphasis added, footnote references retained, footnotes omitted, save as follows] 115 One of the authorities cited with evident approval at footnote 85 in support of the highlighted circumstance where release may (not must) be permitted, namely release to an administrative agency, is the judgment I delivered in Sinnott v Chief of Defence Force [2020] FCA 643 (Sinnott), at [23] - [24]. In that case, I released the CDF from the obligation regarding the use of material for the purposes of that case so as to permit its use for the purpose of considering possible disciplinary charges under the DFDA or a reference to the Legal Services Commissioner. In that case, the material disclosed a use of information in an ADF publication marked "For Official Use Only", which may have been outside the permissible class of use. Although it is fair to say that, before Shi, Sinnott had received a mixed reception in other cases at original and intermediate appellate level, it is neither necessary nor desirable in light of Shi to rehearse such cases in any detail. One need only additionally note its further citation with apparent approval by the Full Court in Glencore Coal Pty Ltd v Franks (2021) 284 FCR 622 (Glencore), at [26]. Although Glencore contains a comprehensive discussion of authority concerning circumstances in which release from a "Harman undertaking" might be granted, that discussion is to no different end than the summary offered by Gordon J in Shi. It is sufficient in this case to act on the latter. 116 Were the video recording to have been obtained from the complainant via, for example, discovery, non-party discovery or subpoena in the course of litigation to which the CDF was a party, it would, in my view, be entirely in keeping with the summary of principle offered by Gordon J in Shi to release the CDF from what would otherwise be an obligation to use that material solely for the purpose of that litigation if that material, prima facie, may have provided occasion for requiring a defence member to show cause why their membership of the ADF ought not be terminated pursuant to s 24(1)(c). In this regard also, it is not, in my view, an appropriate approach to the separation of powers for which the Constitution provides to proceed on the footing that there is, in that separation, a "suicide pact". Certainly, each case in which release was sought would have to be considered on its individual merits. However, I find it difficult to see why, in terms of principle as summarised in Shi, if the CDF became aware as a party to litigation that particular defence members may be using prohibited substances, a court would not release the CDF from the restricted use obligation to which he was subject in order to pursue a s 24(1)(c) process. 117 Thus, proceeding by analogy confirms that this ground of review should not be upheld.

Burns v Chief of the Defence Force

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (16)

Cases Cited (36)