Many exceptions to the general prohibition in subs (1) are then set out. His Honour was not required to consider which, if any, of those exceptions applied to the assumed circumstances of the present case. The case proceeded before him, (and was argued on appeal) on the assumption that the information to which the respondent sought access was "lawfully intercepted information" for the purposes of s 63 of the TIA Act. Indeed, it may be that the legality of the interception pursuant to which the information sought by the respondent was putatively obtained had no bearing on the application of s 63, since that section applies both to "information obtained … by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system" (s 6E) and to "information obtained by intercepting a communication in contravention of subsection 7(1)" (s 63(1) itself).
38 The operation of s 63 of the TIA Act is subject to the provisions of the part in which it is found, Part 2-6. There are many such provisions which permit conduct that would otherwise be in contravention of s 63. For the most part, those provisions are detailed and tightly worded. One of them is s 67, the relevance of which was also argued before his Honour, but which was not dealt with on appeal. Another is s 74, under which a person may give "lawfully intercepted information … in evidence … in an exempt proceeding". The term "exempt proceeding" is itself defined in a detailed and prescriptive way. By s 75A of the TIA Act, if information is given in an exempt proceeding pursuant to s 74, that information, or any part of that information, may later be given in evidence in any proceeding. I need not refer further to the exceptions to the operation of s 63 of the TIA Act, save to observe that they bespeak careful, detailed and comprehensive attention, both as a matter of policy and as a matter of drafting, to the situations in which the legislature would permit information to be communicated, used etc in a way that would otherwise be in contravention of that section.
39 Before the trial Judge, the respondent relied not upon any of the statutory exceptions to s 63 of the TIA Act, but upon the judgment of the Full Court in Kizon v Palmer (1997) 72 FCR 409. His Honour substantially upheld the respondent's case in this respect. His Honour regarded Kizon v Palmer as authority for the proposition that s 63 should be given a purposive construction as required by s 15AA(1) of the Acts Interpretation Act 1901 (Cth). His Honour said:
'The purposive approach means, at the least, that it cannot be the intention of the legislature that a person to whom 'lawfully obtained information' is published cannot use that information either to challenge the legality of its being obtained or to defend himself against any allegations made as a result of that information. In the latter case, such an interpretation would run contrary to the well-established principles of justice and fairness that require prosecutors to disclose materials to defendants: see R v Reardon [2004] NSWCCA 197 at [46]-[55] per Hodgson JA; R v Ulman-Naruniec[2003] SASC 437 at [136]-[146] per Sulan J. In circumstances where - as may be the case here - publication has not been to the world at large, s 63 of the TIA Act may still prohibit dealings that involve publication of 'lawfully intercepted information' to those not already aware of it. In this case, Mr Samsonidis has had published to him the purported fact that 'lawfully intercepted information' concerning him has been obtained. An interpretation that denies him access to that 'lawfully obtained information' would be absurd and, on the authority of Kizon v Palmer, such an interpretation must be rejected.'
40 Kizon v Palmer came before the Full Court on a case stated under s 25(6) of the Federal Court of Australia Act 1976 (Cth). There was a statement of agreed facts. According to that statement, Kizon had been charged with conspiring to possess a quantity of cannabis with intent to sell and/or supply. The police brief contained copies of warrants issued under the Customs Act 1901 (Cth) and under the TIA Act (then called the Telecommunications (Interception) Act 1979). Kizon commenced a proceeding challenging the issue of the warrants pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). The court made orders for discovery and inspection of documents. Palmer (the Commissioner of the Australian Federal Police) filed a list of documents in which he claimed public interest immunity for certain documents referred to in affidavits sworn by a Detective Superintendent. Kizon challenged the claim for public interest immunity. The court made orders requiring Palmer to file a more detailed affidavit supporting that claim. Pursuant to those orders, Palmer filed an affidavit sworn by an Assistant Commissioner, to which was annexed an edited version of certain documents for which the immunity was claimed and which, together with the Assistant Commissioner's affidavit itself, contained information relating to the interception warrants and, in one respect, information which had been obtained by the interceptions. The Assistant Commissioner's affidavit was "open", by which I understand that no claim for confidentiality was made in relation to it, or to its annexures, at the point of filing.
41 Of the questions referred to the Full Court under s 25(6) of the Federal Court Actin Kizon v Palmer, two are relevant for present purposes. The first is question 2(b) which inquired whether s 63(2) and s 67(b) of the TIA Act, (and another section not presently relevant) operated to prevent Kizon from "placing reliance … upon" the Assistant Commissioner's affidavit, and the exhibits thereto. At the time, s 63(2) dealt with what was called "designated warrant information". That is a reference to what the TIA Act now calls "interception warrant information", namely, information about the warrant itself.
42 In delivering a judgment with which Jenkinson and Keifel JJ concurred, Lindgren J held that the definition of "designated warrant information" (now "interception warrant information"), and the various provisions which invoked it, and the definition of "lawfully obtained information" (now "lawfully intercepted information") (and, presumably, also the provisions which invoked it) were to be read purposively. His Honour relied upon s 15AA(1) of the Acts Interpretation Act. His Honour said:
'A purposive construction is necessary to avoid absurdity. It would be absurd that the prohibitions in s 63 should continue to apply to information of a kind referred to in the definition of "designated warrant information" once that information is in the public domain by, for example, having been given in evidence publicly in a prosecution. There is no provision in Part VII of the TI Act which expressly permits further divulging of designated warrant information which has been publicly given in evidence in a prosecution, yet according to a non-purposive construction, the prohibition would prevent a reporting of the evidence. This result cannot have been intended.'
Since Kizon v Palmer, the TIA Act has been amended such that there is now a provision in Part 2-6 thereof which would permit the further (limited) divulging of interception warrant information, and, subject to a presently irrelevant exception, lawfully intercepted information, which has been publicly given in evidence in a prosecution - s 75A to which I have referred.
43 The second presently relevant question in Kizon v Palmer, question 5(b), inquired whether s 63(1) and s 67(a) of the TIA Act prevented Kizon from "placing reliance … upon" the Assistant Commissioner's affidavit and the exhibits thereto. Subsection (1) of s 63 related to information obtained as a result of intercepting the communication in question (as it still does). Lindgren J dealt with question 5(b), and with the point arising under s 63(1), briefly towards the end of his reasons as follows (72 FCR at 447):
'The question should be answered "no" because the prohibition should be construed purposively for the reasons which I gave earlier in relation to question 2(b). Fairfax v Doe at 87E per Gleeson CJ and Green v R (1996) 135 ALR 181 at 185-6 per Franklyn J offer direct support for that approach to the construction of the prohibition in s 63(1).'
It is apparent that his Honour saw no relevant distinction between the way s 63(1) dealt with "lawfully obtained information" and the way s 63(2) dealt with "designated warrant information". As I have said, the TIA Act now provides, in s 75A, for some circumstances in which information of the kind to which s 63(1) refers may be divulged after having been given in evidence in a prosecution.
44 In point of fact, Kizon v Palmer is to be distinguished from the present case on at least two bases. First, the question there (relevantly to the present matter) was whether s 63 stood in the way of Kizon relying on an open affidavit which had been filed in the very proceeding on behalf of Palmer. I can understand that Lindgren J would consider that for s 63 to be so construed as to prevent a party to the instant proceeding from relying upon an open affidavit which had been filed and read in that proceeding would involve an absurdity. In the present case, by contrast, the appellant has taken no step to divulge the information in question in this proceeding. Secondly, Kizon sought only to rely upon information which he already had and which was, in terms, on the court file. In the present case, the respondent has a report of what (twice translated) was apparently said before the examining magistrate in Athens, but that is not the information to which he seeks access. Rather, he seeks access to information which he has not got and the existence of which the appellant has not admitted. And he does so for reasons which include his belief that Mr Livanis did not accurately transmit the context of the conversation which was putatively intercepted and recorded - a stated belief which amounts to an assertion that the information to which he seeks access is not the information which was produced before the examining magistrate.
45 In their written outline on behalf of the appellant, Mr Pagone QC and Ms Walker submitted that Kizon v Palmer was wrongly decided, and should be overruled. They adverted to that submission only fleetingly at the hearing of the appeal, preferring to support their attack upon the judgment below on the basis that Kizon v Palmer should be distinguished for reasons which included those referred to in the previous paragraph of these reasons. Mr Livermore, who appeared for the respondent, supported his Honour's judgment on the basis that the present case was covered by Kizon v Palmer, and that that case was correctly decided. He submitted that here, as there, to construe s 63 as precluding the appellant from divulging the original transcript of the evidence that was given in court proceedings in Greece would be absurd, and could not have been intended by the legislature.
46 As is apparent from what I have said above, I agree with Mr Pagone that the facts of the present case are very different from those of Kizon v Palmer. However, particularly given the position taken by Mr Livermore, the question is whether they differ in a way which is relevant to the proposition for which that judgment stands. Mr Pagone eschewed any suggestion that Kizon v Palmer stands for the bare proposition that s 63 has no application to information that has come into "the public domain". He said that Lindgren J's phrase was significantly limited to information that had come into the "public domain" by, for example, having been given in evidence publicly in a prosecution. In other words, according to Mr Pagone, Kizon v Palmer stands for the proposition that s 63 has no application to information that has come into the public domain by a method or means of which the giving of evidence publicly in a prosecution is an example. As so stated, the proposition is not obviously calculated to exclude from its scope the method or means by which the information in the present case came to the attention of the respondent. It may be true (it was not established either way) that the evidence of Mr Livanis was not given publicly, but the trial Judge considered that that was not a proper ground upon which to distinguish Kizon v Palmer. In proceeding that way, his Honour was recognising that Lindgren J's reference to the giving of public evidence in a prosecution was by way of example only, and that the context in which Mr Livanis gave evidence in Athens came within the class of circumstances of which that example was a member.
47 If Lindgren J's proposition involves something more limited than the information in question having been brought into the public domain by any means at all, I consider, with respect, that the additional defining element, expressed as it was by example only, would be bound to lead to further disputes in its practical application, as it has in the present case. Neither can his Honour's proposition be considered to have been confined to circumstances where the information came into the public domain by having been divulged in public evidence in a prosecution, since Kizon v Palmer itself was not a prosecution. In the circumstances, I do not think that the proposition for which Kizon v Palmer stands, and which required it to be decided the way it was (its ratio decidendi), is to be found in Lindgren J's statement about the public domain - with or without qualifier. I consider that the relevant proposition was that a purposive approach to the construction of s 63 was warranted where necessary to avoid an absurdity. I believe that the present appeal may be disposed of in a way which is consistent with that proposition.
48 Relevantly to the present case, the purpose of the TIA Act is, as stated in the preamble, "to prohibit the interception of, and other access to, telecommunications except where authorised in special circumstances". Chapter 2 of the TIA Act deals with the matter of the interception of telecommunications. It commences with s 7(1), which contains a sweeping prohibition. The balance of the chapter is largely concerned with the exceptions to that prohibition. Relevantly to the present matter, there is a pattern in the chapter of providing for an exception, and then limiting the extent to which information obtained as a result of the application of the exception may be used, communicated etc. Thus it may be seen that the area marked out by each exception is tightly defined and guarded. Each seepage of information beyond any such area should rightly be regarded as a failure to achieve the object to which the preamble refers, and which is given practical expression in s 7(1) and the "special circumstances" to which subsequent provisions of Chapter 2 relate.
49 In my view, both the nature of the subject matter of, and the detailed provisions in, the TIA Act bespeak the appropriateness of a court showing particular deference to the terms in which the legislature has chosen to express itself. It is those terms which should, save in a very clear case, be treated as embodying legislative purpose. Relevantly to the present matter, I can think of no reason why the purpose of the legislation should be seen as anything other than preventing the communication, use etc of lawfully intercepted information save in the specific circumstances for which the TIA Act itself provides. Section 63 operates subject to Part 2-6, in which words I discern a purpose that only the provisions of that part should qualify the otherwise absolute prohibitions set out in the section itself.
50 I do not accept Mr Livermore's submission that to allow s 63 to operate literally in the circumstances of the present case would produce an absurdity. The respondent has a report of what Mr Livanis said to the examining magistrate in Athens. I do not consider it at all absurd that, in those circumstances, he should be unable to obtain access to something different - the original transcript (if it exists) of the conversation upon which Mr Livanis's evidence was based. With respect, I do not agree with his Honour's view to the contrary. I do not accept that, on the limited materials before his Honour, the respondent should have been regarded as someone who was unable to defend himself against allegations made in Greece. Those materials show that the respondent's Athens lawyer told his Melbourne solicitor that the Greek authorities had not provided the respondent with the original transcript which he now seeks. He has not applied for bail because his prospects of being granted bail depend substantially upon him being able to produce material to dispute Mr Livanis's evidence. It seems, therefore, that the point has not yet been reached where Mr Livanis's evidence is sought to be used in a hearing in which the respondent's guilt or innocence is at stake. The proposition that the respondent will be unable to defend himself unless given access to the original transcripts - materials which, for all the evidence shows, the Greek prosecuting authorities themselves may not have - involves, in my respectful view, all manner of silent assumptions about the operation of the Greek criminal justice system and the extent to which, and the means by which, the well-established principles to which the trial Judge referred in the extract from his reasons which I have set out in par 39 above are given practical expression. With respect to the trial Judge, I do not consider that s 63 should be construed by reference to those assumptions.
51 In the context of facts such as those assumed to exist here, I do not consider it at all absurd to opine that the legislature probably did not regard s 63 as inapplicable to information which had been used against a person in a criminal proceeding in a foreign court. As propounded by the respondent, the exception (to the operation of s 63) on which he relies would be broader in scope even than that provided specifically by s 75A of the TIA Act itself. That section makes an exception in the case of information given in evidence in "an exempt proceeding", but then only for the purpose of the information being given in evidence in another proceeding. By contrast, the respondent submits that s 63 does not apply at all to the information that formed the basis of Mr Livanis's evidence - ie not only for the purpose of later court evidence, but generally. That could not have been intended. It is sufficient, however, to say that the literal operation of s 63 could not in the circumstances be regarded as absurd.
52 We were referred to Wood v Beves (1997) 137 FLR 436. While the approach which I have taken here is consistent with that of Cole JA (with whom Studdert A-JA agreed) there, it is by reference to Kizon v Palmer that our own deliberations should proceed. I have attempted to elucidate the proposition for which Kizon v Palmer stands, and to express my reasons consistently with it. The trial Judge also referred to a number of judgments which propounded the wisdom of the purposive approach to statutory construction. I have not found it necessary to consider those judgments directly, since our obligation to take such an approach is mandated by s 15AA of the Acts Interpretation Act, about which there is no presently relevant controversy. The real question, as I have attempted to explain, lies in identifying the purpose of the relevant provisions of the TIA Act.
53 It follows that I would set aside the trial Judge's declarations and his costs order in favour of the respondent. According to his Honour's reasons, the respondent had another basis upon which he sought to contend that the prohibitions in s 63 of the TIA Act were inapplicable in the circumstances - that the appellant was permitted, under s 67(1) of the Act, to communicate lawfully intercepted information for "a purpose connected with … an investigation … of a prescribed offence". Because of the respondent's success on the Kizon v Palmer point, his Honour did not need to deal with the point arising under s 67. He "otherwise dismissed" the respondent's application. In the absence of a determination of the s 67 point, that order too should be set aside. We were not addressed on the s 67 point, and are in no position to determine it. It will have to be referred back to his Honour for hearing and determination.