cASE LAW
9 In considering the particular issues that arise in this proceeding, the importance and cogency of the public interest in the due administration of justice must be kept in mind. The views expressed by Mason J in Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582 at 593 are pertinent to such considerations. His Honour there referred to "two principal considerations":
"The first is that it is central to our conception of the administration of justice that documents relevant and material to the issues arising in litigation should not be withheld from the parties and that each party enjoys as an incident of his right to a fair trial the right to present as part of his case all the relevant and material evidence which supports or tends to support that case. The existence of Crown privilege as an acknowledged exception should not be seen as a reason for diminishing the force or the importance of this conception of the administration of justice, but rather as embracing a group of 'exceptional cases' in which the public interest in the proper administration of justice has been outweighed by a superior public interest of a self-evident and overwhelming kind.
The second consideration, closely connected with the first, is the need to maintain public confidence in the administration of justice. The withholding from parties of relevant and material documents, unless justified by the strongest considerations of public interest, is apt to undermine public confidence in the judicial process."
10 In resolving the present issue it is also important to bear in mind the way in which documents are produced to the Court and may be later made available to the parties for possible admission into evidence. In Waind v Hill and National Employers Mutual General Association Limited [1978] 1 NSWLR 372, a decision of the New South Wales Court of Appeal, Moffitt P referred to three stages in the production and tender of documents under subpoena as follows, at 381:
"The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which the ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs."
11 Once the documents are brought to the court they are in the possession and control of the court for the purposes of the legal proceedings. The stage with which we are concerned in the present case is the second stage referred to above, where the judge determines the preliminary use of the documents, which includes whether permission should be given to a third party or parties to inspect the documents. At this stage the court will not have seen the documents so that there can be no question of the court itself disclosing information which it has to the parties. It is of course possible for the judge to impose conditions and restraints on the use which may be made of the documents and the persons to whom they are disclosed and the basis on which they are made available for access. It is commonly the case that decisions will be made at this point as to confidentiality and appropriate safe guards to ensure that the documents are only used for the purposes of the proceedings before the court in order to make a proper determination in accordance with the true facts as they are determined by the court.
12 The plaintiffs have referred to the decision of Sheppard J in The Sanko Steamship Company Limited v Sumitomo Australia Limited (1992) 37 FCR 353, where his Honour held that reg 15, in its earlier form, did not apply to the Court because the words "to any person" in sub-reg 15(1) did not impair the Court's power to compel production of documents in a civil proceeding for the purpose of a hearing, nor did it impair the general right which a party has pursuant to a subpoena to require production to the Court. At 359-360, after reviewing the authorities, his Honour concluded:
"Subject to one matter relied upon by Mr Rowland and counsel for the plaintiffs to distinguish the present case from those referred to, it would seem that there is a clear preponderance of authority for the view that the words 'to any person' do not apply to a court. …
Whether one decides the matter upon those broad considerations or simply takes the view that, despite the reference to Boards of Marine Inquiry in the regulation, 'any person' does not refer to a court, is immaterial. In my opinion the regulation does not provide any basis for the denial of the ordinary entitlement to inspect documents which a party issuing a subpoena has."
13 His Honour had referred to a line of authority to the effect that the expression "person" did not apply to a court: see Canadian Pacific Tobacco Co Limited v Stapleton (1952) 86 CLR 1; Hilton v Wells (1985) 157 CLR 57 at 87; Commissioner of Taxation v Nestlé Australia Limited (1986) 12 FCR 257 at 261-262.
14 Extensive amendments and additions were made to the Regulations in 2001 which relevantly comprised amendments to reg 15 itself, including the addition of sub-regs 15(3)-(8), and the insertion of a series of additional provisions (regs 15A-15E) relating to the admissibility of evidence given to investigators of marine accidents. These changes were designed to implement the Code for the Investigation of Marine Casualties and Incidents ("the Code"), adopted by the Assembly of the International Maritime Organisation on 27 November 1997, which is set out in Schedule 1 to the Regulations.
15 The International Maritime Organisation is an international body concerned with safety at sea. Part of its function is to adopt codes of conduct concerning numerous aspects of safety at sea.
16 I have not been referred to any background documents which disclose that the language used in clause 10 of the Code (which is the relevant clause in this proceeding) was intended to support a conclusion that the interpretation given by the Court in Sanko or indeed any other decision concerning disclosure to a "person" was to be displaced. The reasoning in Nestlé clearly indicates that the Court did not consider that references to an officer "divulging information" to a person were appropriate to cover the circumstances where an application had been made to a court for relief in connection with a dispute and production of documents had been sought.
17 The Regulations did not simply adopt the provisions of the Code on a word for word basis but rather made provision to apply the Code to Australian conditions. There are important differences in language between the provisions of the Code and the Regulations.
18 Notwithstanding the above decisions and the extensive amendments, which came into effect on 13 February 2001, the reference to "person" in sub-reg 15(1) was not varied so as to expressly prevent the divulging of information to or by a court. It would have been a simple matter to make such an amendment. As is pointed out in the above decisions, the expression "divulge" in the amended sub-reg 15(1) is not appropriate in relation to documents produced on subpoena issued in the course of a curial proceeding.
19 As outlined in Waind the subpoenaed documents are produced to the court. This does not involve any "divulging" of information. If the court decides to grant access to the parties then it cannot be said on the ordinary use of language that "an inspector" or "investigator", on whom the obligation is imposed under sub-reg 15(1), or any person taking information from him or her, is divulging information. The discretionary grant of access by a court, if granted, is made in response to a request from a party to see the documents. If access is opposed, the court will then consider the objections made and exercise its discretion in making a determination whether access should be granted. Where the court decides to grant access, the order can be made on conditions as to strict confidentiality to protect the sources and content of the information. The provisions of sub-reg 15(2) do not assist the ATSB because if documents are made available, the court is not a "person" within sub-reg (1), nor is there any divulging of information to it because it has not seen the content of the documents. This observation is subject to the possibility that the Judge may have looked at the documents in connection with a privilege claim.
20 A further submission for the ATSB is that sub-reg 15(5) independently operates as a restraint on the Court making information available to parties. It is submitted that this sub-regulation both empowers and restricts the Court in relation to the disclosure of information held by an inspector or investigator and that the conferral of power is in terms that "the Court may order or authorise" and the restriction is inherent in the words "only if".
21 It is difficult, on a normal reading of the language used, to relate this provision to the special role undertaken by a court in relation to documents produced on subpoena. When a court grants access to documents produced on subpoena it does not, in my view, "order" or "authorise" the disclosure of information by any person. The entitlement to seek such an order in reg 15 is conferred on persons who, under sub-regs (3) and (4), apply to the court for an order that "a person" who holds information must disclose it. Again, the use of the expression "person" in these provisions does not include a court and therefore these provisions do not apply. This conclusion is reinforced by sub-regs (7) and (8) which refer to orders or authorisations to "a person" and which compel or authorise such persons to disclose the information in accordance with an order by the court. This language simply does not fit with the way in which courts deal with the production of documents produced on subpoena.
22 The other amendments to the evidentiary regime in regs 15A to 15E inclusive, are concerned with the specific limited question of admissibility into evidence of voice data recordings and extracts if sought to be adduced in evidence in civil or criminal proceedings. They do not bear on the present application.
23 The 2001 amendments to the Regulations include a number of definitions and also introduce Part 4A. Part 4A is headed "International Cooperation". The objective of this Part is expressed in these terms:
" 32A The purpose of this Part is to ensure that incidents in relation to which Australia, and a least 1 foreign State, are substantially interested States are investigated in accordance with Australia's obligations under the Code."
24 The Code referred to in this provision is the IMO Code for the Investigation of Marine Casualties, mentioned above.
25 The Code is made as a Schedule to the Regulations and the introduction to the Code is, for present purposes, in these terms:
"1.1 This Code recognizes that under IMO conventions each flag State has a duty to conduct an investigation into any casualty occurring to any of its ships when it judges that such an investigation may assist in determining what changes in the present regulations may be desirable or if such a casualty has produced a major deleterious effect upon the environment. …
1.2 The aim of this Code is to promote a common approach to the safety investigation of marine casualties and incidents, and also to promote co-operation between States in identifying the contributing factors leading to marine casualties. …
1.3 By introducing a common approach to marine casualty investigations and the reporting on such casualties, the international maritime community may be better informed about the factors which lead up to and cause, or contribute to, marine casualties. …
…
3 Application
This Code applies, as far as national laws allow, to the investigation of marine casualties or incidents where either one or more interested States have a substantial interest in a marine casualty involving a ship under their jurisdiction." (Emphasis added)
26 Clause 10, which is material to the present issue, is in these terms:
"10 Disclosure of records
10.1 The State conducting the investigation of a casualty or incident, wherever it has occurred, should not make the following records, obtained during the conduct of the investigation, available for purposes other than casualty investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs any possible adverse domestic and international impact on that or any future investigation, and the State providing the information authorizes its release:
.1 all statements taken from persons by the investigating authorities in the course of the investigation;
.2 all communications between persons having been involved in the operation of the ship;
.3 medical or private information regarding persons involved in the casualty or incident;
.4 opinions expressed during the conduct of the investigation.
10.2 These records should be included in the final report, or its appendices, only when pertinent to the analysis of the casualty or incident. Parts of the record not pertinent, and not included in the final report, should not be disclosed."
27 In the present case, the State conducting the investigation is Australia. The foreign State is Liberia, the ship, "Craig The Pioneer" being registered under the Liberian flag at all relevant times. It is common ground that Liberia has not authorised the release of the information relating to the investigation so that the requirements of clause 10.1 of the Code and sub-reg 15(5) of the Regulations have not been satisfied.
28 The operation of reg 15 and the Code was recently considered in relation to a marine incident, by Master Coulehan of the Supreme Court of the Northern Territory: see Renehan v Commonwealth of Australia [2001] NTSC 56. That case concerned a claim in negligence in respect of injuries sustained by a plaintiff when she was climbing the rigging of a sail training vessel ("STS Leeuwin"). The documents in question in that case had been the subject of a subpoena and production of the records the ATSB made and considered in the course of its investigations had been sought.
29 The Master considered that in view of the 2001 amendments and the Code, the reasoning in relation to "person" of Sheppard J in Sanko was no longer applicable. He said at [14] ff:
"14 Although an intention to limit a court's powers is not lightly to be inferred, the clear intention is that the disclosure of information is to be in accordance with the requirements of regulation 15(5). This necessarily excludes a court's powers to order disclosure by other means, such as through the discovery process or by use of a subpoena. The opinion expressed by Sheppard J in Sanko, that the reference to 'any person' in regulation 15, did not include a court, is no longer persuasive in this context, and may be distinguished.
….
20 There is no evidence that anybody has authorised the release of the evidence contained in the documents the subject of this application. It may be inferred that the plaintiff has authorised the release of the evidence she provided, but regulation 15(1)(a) provides that the information may be divulged to her in any event.
21 In the absence of authorisation, it is unnecessary for me to further consider the requirements of regulation 15(5)(a). Nor is it necessary, or desirable, that I consider the issue of public interest immunity."
30 I do not agree with the reasoning in this decision because the language of sub-regs 15(1) and (5) as amended does not justify a conclusion that the provisions are designed to restrain a court in circumstances where proceedings are instituted and documents are subpoenaed in the course of those proceedings.
31 It is well settled law that, in interpreting domestic law which gives effect to international instruments such as Conventions or Agreements, regard should be paid to the provisions and operations of those instruments. Domestic legislation which contains ambiguous provisions should be interpreted in such a way that a particular word or phrase is to be given the same or a similar meaning as it has in the relevant International Convention or Treaty. There is a presumption that Parliament has intended that the legislation implementing such an instrument should be interpreted where appropriate by reference to the rules applicable to the interpretation of Treaties and the principles governing the interpretation of domestic legislation give way to those rules: see D Pearce and R Geddes, Statutory Interpretation in Australia, Butterworths, Australia, 5th ed. 2001, at pars 1.10, 2.16, and 3.8 and the cases referred to in those paragraphs; see also the helpful article by G Williams and A Simpson, "International Law and Constitutional Interpretation", 11 PLR 205 at 206-209 and A Mason, "International Law as a Source of Domestic Law" in Opeskin and Rothwell (eds), International Law and Australian Federalism, Melbourne University Press, Melbourne, 1997.
32 In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287, Mason CJ and Deane J said:
"If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail."
33 This accords with s 15AB of the Acts Interpretation Act 1901 (Cth) which provides:
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection is in the interpretation of a provision of an Act includes: ….
(d) any treaty or international agreement that is referred to in that Act;
…" (Emphasis added)
34 In the present case I do not consider that the language of reg 15 is unclear or ambiguous and the duty of the Court, in my view, is to give effect to the language used in the domestic legislation. The regime in relation to the production and inspection of documents in evidence is well-settled and has regard to the requirement for the due administration of justice and the public interest in such due administration. This supports a conclusion that neither sub-reg 15(1) nor sub-reg 15(5) are applicable to circumstances where court proceedings have been instituted and documents are ordered to be provided pursuant to a subpoena in those proceedings. Such a conclusion does not mean that the appropriate confidentiality regime sought for the documents cannot be imposed so as to prevent exposure of sources, or material, and ensure that sources of information in administrative investigations such as those conducted by the ATSB are not at risk. It is common practice for courts in the exercise of their discretion to impose strict confidentiality regimes in relation to material produced should the circumstances so require in order to enable them to perform their duties while at the same time paying due regard to the desirability of confidentiality.
35 The legislature in the present case has not in my view, by its language, expressed a clear intent to vary the effect of the earlier decisions as to the operation of reg 15 and provisions in similar terms concerning the use of the word "person" by making it clear that they apply to the court process. I therefore consider those provisions do not apply to the circumstances of the present case.
36 I am not persuaded from the generalised and speculative material presented by the ATSB, including the matters referred to in the evidence of Mr Alan Stray, that if the material were made available under a strict confidentiality regime there would be any significant detrimental effect which would restrict the availability of information in the future to the extent that this consideration would outweigh the powerful public interest in the Court having full and sufficient information. The Court should not lightly be constrained from performing its functions in the light of full access to all relevant material. If, however, there were clear and express provisions which precluded the Court from adopting such an approach, effect must be given to such provisions. But that is not the present case. If the legislature had intended to apply reg 15 to court proceedings, such as the present, it would have been a simple matter to make that clear. In my opinion, the legislature has not done so.
37 It is submitted that the interpretation advanced by the plaintiffs would result in a dual and different regime for production and access to documents dependant on whether legal proceedings have been instituted. It is said that it would be anomalous to have a result that where court proceedings have been instituted and a subpoena issued, reg 15 will not apply, but where no proceedings have been instituted, the regime under reg 15 will apply. I do not see any necessary anomaly in this differential situation because this is normally the case. Court proceedings set up a regime which enables documents to be produced and inspected either by way of discovery or subpoena, and this includes, for example, circumstances where there would not otherwise be any entitlement or ability to access documents. There is no new right of access to documents created by such an interpretation of reg 15 in its amended form.
38 Accordingly, in the present matter, I do not consider that the material is privileged or within the operation of reg 15 of the Regulations. I therefore consider that the material can be made available by the Court to the parties. However, there may need to be imposed a confidentiality order in relation to such documents and I will hear the parties on the formulation of an appropriate regime order.
39 The defendants and the ATSB should pay the plaintiffs' costs of and incidental to this hearing because the plaintiffs have been successful.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.