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[2025] ACTSC 380
General information, not legal advice.
Supreme Court of the ACT
2025-08-26
Mossop J
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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Ferguson v ACT Integrity Commission (No 2) Citation: [2025] ACTSC 380 Hearing Date: 22 August 2025 Decision Date: 26 August 2025 Before: Mossop J Decision: (1) The application for an interlocutory injunction contained in the originating application filed 23 July 2025 is dismissed. (2) All questions of costs are reserved with liberty to apply on seven days’ notice. (3) The proceedings are listed before the Registrar on 1 September 2025 at 9:30am and the parties are to provide agreed or competing directions to the Registrar by 4pm on 28 August 2025. Catchwords: PRACTICE AND PROCEDURE – INJUNCTIONS – Where plaintiff sought interlocutory injunction to prevent Integrity Commission accessing data from mobile phone – where grounds of application raise serious questions to be tried, but factual and legal merits of grounds favour Commission – where balance of convenience does not favour grant of injunction – where privacy over documents not the subject of a bona fide privilege claim only lost to Commission – where public interest in Commission being able to complete and report on investigation – application dismissed ADMINISTRATIVE LAW – INTEGRITY COMMISSION – Examination power – whether Commission failed to consider relevant considerations in issuing examination summons – whether Commission asked itself wrong question in requiring immediate production – whether Commission acted outside authority – whether right to privacy contravened – whether seizure of mobile phone constituted trespass to property – serious questions to be tried, including regarding relationship between s 147 and ss 117, 119 and 121 of the Integrity Commission Act 2018 (ACT) and s 12 of the Human Rights Act 2004 (ACT) – claims not obviously strong INTEGRITY COMMISSION – EXAMINATION POWER – Claim of client legal privilege over entire mobile phone handset, including documents where privilege is that of the Territory and not the plaintiff – whether claim is sufficiently specific to be a claim within s 161 of the Integrity Commission Act 2018 (ACT) – where open to and reasonably practicable for plaintiff to make a more specific claim that does meet requirements of s 161 – serious question to be tried Legislation Cited: Human Rights Act 2004 (ACT), ss 12, 28, 40B, 40C(6) Integrity Commission Act 2018 (ACT), ss 117, 119, 120, 121, 122, 147, 150, 161, 162, 174, 188 Legislation Act 2001 (ACT), s 196 Cases Cited: ACT Integrity Commission v Levy (a pseudonym) [2022] ACTSC 240; 20 ACTLR 1 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; 265 CLR 646 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; 272 CLR 177 Parties: David James Ferguson (Plaintiff) ACT Integrity Commission (Defendant) Representation: Counsel A Williamson SC with P Bindon (Plaintiff) B Kaplan with JM Petry (Defendant) Solicitors Moray & Agnew Lawyers (Plaintiff) ACT Integrity Commission (Defendant) File Number: SC 271 of 2025 MOSSOP J: Introduction
The plaintiff is the Chief of Staff to the ACT Treasurer. Prior to that role, he held roles as advisor to the Chief Minister, the Attorney-General, the Minister for State, the Minister for Planning and the Minister for City Services and Transport.
The defendant, the ACT Integrity Commission, is currently conducting an investigation into the procurement of building works at Campbell Primary School in the ACT under the Integrity Commission Act 2018 (ACT) (IC Act). This investigation is referred to by the Commission as “Operation Kingfisher”. In October 2023, the plaintiff gave evidence to the Commission pursuant to an examination summons. On 6 May 2025, the plaintiff was issued with another examination summons under s 147 of the IC Act, which required him to give further evidence to the Commission relevant to Operation Kingfisher.
On 12 June 2025, along with his solicitor, the plaintiff attended the Commission to be examined. As part of that examination, he was asked questions by counsel assisting the Commission. After being asked some questions about his mobile phone, the plaintiff was, during the course of the examination, given a further examination summons requiring him to produce his mobile phone immediately. He did not have his mobile phone with him. He was told by the Commissioner that he would be accompanied by officers of the Commission to collect his mobile phone. The plaintiff, two of the Commission’s investigators and the plaintiff’s solicitor travelled in the plaintiff’s vehicle to his apartment. One of the investigators accompanied the plaintiff to the apartment and entered the apartment. The plaintiff retrieved his mobile phone, and it was given to the investigator. Upon returning to the Commission, the examination was continued and, during the course of the examination, the plaintiff was asked to provide the pin code for the mobile phone and did so. The data on his mobile phone was extracted using the Cellebrite data extraction technology. The mobile phone was returned to the plaintiff later that day. The Commission retained the data from the mobile phone. Subsequently, there was a communication from the plaintiff’s solicitor to the Commission which asserted a claim of privilege over the mobile phone, and hence the whole of the contents of the mobile phone, and made various other submissions about the lawfulness of the process that had been adopted to obtain the mobile phone.
The plaintiff has identified what he describes as four different decisions which he seeks to have judicially reviewed: (a) the decision to issue an examination summons to produce his mobile phone (First Decision); (b) the decision to have that examination summons require immediate production of the mobile phone (Second Decision); (c) the decision to require the plaintiff to travel with an investigator to and from his home, to enter the plaintiff’s home and to “take hold of or seize” the plaintiff’s mobile phone “purportedly under ss 117, 120, 121 and/or 147” of the IC Act (Third Decision); and (d) the decision not to return the contents extracted from the plaintiff’s mobile phone pursuant to s 162(2)(b) of the IC Act (Fourth Decision).
Evidence
On the application for an injunction, the plaintiff read the affidavit of Ian Denham, his solicitor, dated 23 July 2025.
The Commission read affidavits of: (a) Elizabeth Ashton, an investigator employed by the Commission, dated 20 August 2025; (b) Jeffrey Smith, the Director of Investigations at the Commission, dated 20 August 2025; and (c) Scott Collins, General Counsel at the Commission, dated 20 August 2025.
Test
In order to determine whether an interlocutory injunction should be granted, it is necessary to determine whether the proceedings involve a serious question to be tried. If they do, it is then necessary to consider whether the balance of convenience favours the grant of an injunction.
The Commission contends that the claims do not raise a serious question to be tried or, if they do, the claims are not sufficiently strong to indicate that the balance of convenience favours the grant of an injunction. It is therefore necessary to consider the grounds relied upon.
There was some debate between the parties as to the formulation of the test for an interlocutory injunction. The plaintiff placed reliance upon the formulation in American Cyanamid Co v Ethicon Ltd [1975] AC 396. That decision was discussed in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65]-[72], [135]-[138], which explained the decision in American Cyanamid by reference to the approach taken by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. The Commission placed emphasis upon the statutory functions that were being exercised and contended that the decision in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 ought to be applied in circumstances where action under a statute was being challenged.
In the circumstances of this case, it is not essential to resolve any subtleties of the test for the grant of an interlocutory injunction. The approach that I take in the present case is that it is necessary for the plaintiff to establish a serious question to be tried and that the balance of convenience favours the granting of an injunction. In assessing the balance of convenience, I have taken into account my assessment of the strength of the plaintiff’s case.
Ground 1
This ground contends that the First Decision (the decision to issue the examination summons) involved an error of law because the Commission asked itself the wrong question. The plaintiff contended that the decision on the part of the Commission to require the production of the entire contents of his mobile phone, as distinct from some subset of its contents, involved a failure to take into account the matters required by s 147(2) of the IC Act.
This ground, as initially argued in the plaintiff’s written submissions, was based upon a misconception as to the reasons for the decision to issue an examination summons requiring the plaintiff to produce his mobile phone, rather than selected documents or categories of documents on it. The plaintiff relied upon certain things said on the transcript at the time of the service of the examination summons as indicating the reasons for the decision to issue the examination summons. It appears that the plaintiff was not aware of the prior internal process within the Commission by which the examination summons was issued. The evidence put before the court for the purposes of the injunction application indicated that an entirely separate process had been undertaken whereby one of the persons responsible for the investigation applied to the Commissioner for the issue of an examination summons and expressly dealt, in that application, with the considerations set out in s 147 of the IC Act. That evidence indicated that an application was made on 10 June 2025 by an investigative assistant and that it was approved by the Commissioner. The application contained a description of the investigation context, the relevance of the plaintiff’s evidence and a consideration of each of the matters in ss 147(1) and (2). Further, it contained express consideration of the right of the plaintiff under s 12 of the Human Rights Act 2004 (ACT) (HR Act).
Notwithstanding that this evidence became available to the plaintiff prior to the hearing, he maintained his submission that it was what was said by the Commissioner on the transcript that should be treated as the reasons for the issue of the examination summons or, at least, that those should be read with, and qualify, what was said in the application for the examination summons. This was despite the fact that, by the time of the examination on 12 June 2025, the examination summons had already been issued (even if not served) and it is the decision to issue the examination summons that is challenged.
Because this ground is based upon a misconception that there was no specific consideration of the matters in s 147 and that the matters considered by the Commissioner were only those stated in the transcript of proceedings after the issue of the examination summons, although there is some room for a factual contest as to the considerations taken into account, this ground cannot be assessed as a strong one.
Ground 2
Ground 2 is also related to the First Decision. The plaintiff contended that the reasoning adopted by the Commissioner when making the First Decision involved a failure to consider whether it was reasonable to require the plaintiff to produce the entire contents of the mobile phone. The ground asserts a failure to consider the matters in ss 147(3)(a), (b) and (d).
Once again, this ground appears to be based on a misconception that the only considerations taken into account by the Commissioner were those which were articulated in the transcript of the examination. As indicated earlier, the internal application to the Commissioner for the issue of the examination summons specifically addressed each of the matters alleged not to have been taken into account. Further, in the context of consideration of s 12 of the HR Act, specific reference was made to the filtering process that would have the effect of minimising the exposure, to persons within the Commission, of personal material contained on the mobile phone that was unrelated to the subject of the investigation.
Having regard to the documents evidencing the internal application process, it is difficult to see how this ground rises to the level of a serious question to be tried. For present purposes, and treating the matter on the basis most favourable to the plaintiff, I accept that there is a factual issue to be determined as to the relationship between what was said during the examination and the earlier internal process of the application for the examination summons. However, this aspect of the claim cannot be assessed as strong.
Ground 3
Ground 3 relates to the Second Decision (the decision to require immediate production under s 150(2) of the IC Act). The plaintiff’s application alleges that the decision was materially affected by an error of law because the Commission asked itself the wrong question. The plaintiff alleges that the Commission failed to consider the matters set out in s 150(2) of the IC Act and thereby failed to ask itself the appropriate question. It is alleged that the Second Decision and the Third Decision deprived the plaintiff of the protections of the regime for claiming privilege over things or documents the subject of an examination summons.
There is no specific evidence indicating that the Commission failed to consider the matters in s 150(2). The evidence of Mr Jeffrey Smith, the Director of Investigations at the Commission, is that the Commissioner directed the preparation of the examination summons to require immediate production “in accordance with the usual practice so [as] to protect the integrity of the data on the phone”. That is consistent with what the Commissioner said during the course of the examination about the service of the examination summons. In explaining the process of adjourning the examination so as to permit the plaintiff to comply with the summons to produce the mobile phone and to be accompanied by a staff member of the Commission when doing so, the Commissioner explained that this was so “no suggestion could be made that the phone was in any way interfered with”. The potential that a mobile phone could be interfered with is such an obvious one that it is understandable that the Commission would have a standard process and, in the circumstances of the case, the Commissioner would be readily found to have reasonable grounds for a requirement for immediate production. The fact that the plaintiff was a senior member of staff of a minister, that he was, or was likely to be, represented by a solicitor and that he might have expressed an intention to cooperate with the Commission are not matters which are necessarily inconsistent with a conclusion by the Commission that ss 150(2)(a) or (d) or both were applicable in the circumstances of the case.
The evidence does not support the proposition that the effect of a requirement to immediately produce the mobile phone could deny the plaintiff the capacity to make a claim for privilege over documents on the mobile phone. Although no claim was made at the time of production, the Commission has recognised the entitlement to make such a claim. That issue is related to the subject of ground 6.
Given that, in the documents associated with the internal application for an examination summons, there was no specific reference to the matters in s 150, I consider that there is a serious question to be tried. However, having regard to the obviousness of the risk of interference with the contents of the mobile phone if the examination summons was not required to be complied with immediately, I do not consider that this ground could be categorised as strong.
Ground 4
Ground 4 relates to the Third Decision (the decision to require the plaintiff to travel to his home with an investigator for the purposes of seizing the mobile phone). The ground asserts that this was done pursuant to the powers in ss 117, 120, 121 and/or 147 of the IC Act. The particulars of the ground recite the facts described earlier as to the process by which the mobile phone was produced to the Commission. In particular, they assert that the investigator did not ask for or receive the plaintiff’s consent to enter his home, did not produce an identity card, did not tell the plaintiff that he may refuse to consent to the entry, did not tell the plaintiff that anything found and seized may be used as evidence in court, and did not ask the plaintiff to sign a written acknowledgement of consent or give the plaintiff a copy of a written acknowledgement of consent. These are matters referred to in the statutory provisions identified.
The plaintiff contends that s 147 did not authorise the Commission to require the plaintiff to remain with an officer of the Commission while the examination summons was complied with, that the investigator did not comply with the obligations under s 117 of the IC Act and that the investigator was not authorised under s 121 of the IC Act to take hold of or seize the plaintiff’s goods.
This ground raises questions of fact as well as questions of law. So far as the questions of fact are concerned, one of the investigators who accompanied the plaintiff to his home has put on detailed evidence as to what occurred, based on the terms of a contemporaneous file note. That evidence is consistent with the plaintiff having consented to her entry into part of his apartment at the time when the mobile phone was seized. She characterises what occurred as implied consent to enter, to a limited extent, into the premises, while the plaintiff himself went further into the premises in order to collect his mobile phone. The evidence of the plaintiff’s solicitor is only different in minor respects. There are factual issues which will need to be determined.
So far as the legal issues are concerned, the position is as follows.
The plaintiff submitted that s 117 of the IC Act could not justify the entry because no consent had been provided in accordance with s 119 of the IC Act.
The Commission submitted that the investigator took the mobile phone as a necessary incident of the operation of the power in s 147, rather than pursuant to ss 117, 119 and 121 of the IC Act, and did so with the consent of the plaintiff. The Commission relied upon s 196 of the Legislation Act 2001 (ACT), which provides that a provision of a law that gives a function to an entity also gives to the entity the powers necessary and convenient to exercise the function. In this way, the Commission sought to avoid the procedural requirements in ss 119 and 121. It did not contend that s 196 gave a power of entry without consent, but said that it empowered entry into the residence and collection of the mobile phone where there was consent to entry and the examination summons was in force.
Ground 5
Ground 5 asserts that the Third Decision (relating to the manner in which the mobile phone was produced to the Commission) was legally unreasonable, and hence beyond power, because there was an alternative source of power to seize the mobile phone, namely by obtaining a warrant under s 122 of IC Act.
The plaintiff did not appear to rely upon this ground in support of his application for an interlocutory injunction and, as a consequence, it was not addressed in the Commission’s submissions. Some submissions were made by senior counsel for the plaintiff, asserting that the Commission ought to have proceeded by way of a search warrant under s 122. If this ground was relied upon, I would have concluded, having regard to the nature of unreasonableness described by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76], that there was not a serious question to be tried. Ground 6
Ground 6 alleges that the Fourth Decision (the decision to fail to return the contents of the plaintiff’s mobile phone under s 162(2)(b) of the IC Act) involved a failure to perform a public duty.
As to this issue, the impasse between the parties arises because the plaintiff has declined to identify, other than at the most abstract level, documents over which he claimed privilege. His position appeared to be that the existence of some documents on the mobile phone over which he was entitled to make a claim of privilege was sufficient to require all data extracted from the mobile phone to be provided to the Supreme Court under s 162 of the IC Act. The Commission, on the other hand, does not accept that a claim of privilege can be made without some greater identification of the documents over which privilege is claimed. Because the Commission has not accepted that a claim has been made, it has not taken the steps required under s 161 of the IC Act.
The Commission contended that any client legal privilege arising from the plaintiff’s work for the ACT government will be a privilege that only the Territory is entitled to claim. The plaintiff indicated that he had not given notice to the Territory that he may be producing documents disclosing material the subject of a privilege the Territory may be entitled to claim. Further, he had not sought any variation of the confidentiality notice given to him by the Commission so as to permit him to do so.
Similarly, the Commission submitted that any claim of public interest immunity would be one only available to the Territory. Once again, the plaintiff indicated that he had not given notice to the Territory that he may be producing documents disclosing material that could be the subject of a claim for public interest immunity and he had not sought any variation of the confidentiality notice from the Commission so as to permit him to do so.
The plaintiff also claimed that there were other communications that would be the subject of client legal privilege: (a) communications arising from pro bono advice that he has given as a Californian lawyer to unspecified clients in California; (b) communications between him and his solicitor relating to his compliance with the summons to attend the Commission; and (c) communications between him and a solicitor acting for him in family law proceedings.
Human Rights Act claims
The plaintiff also advances claims under s 40B of the HR Act relating to the First Decision and the Third Decision.
So far as the First Decision is concerned, the plaintiff’s application alleges that the decision to issue the examination summons was unlawful because it: (a) was contrary to the right in s 12(a) of the HR Act; and (b) involved a failure to give proper consideration to that right.
If the decision to issue the summons was “unlawful” or “arbitrary” under the HR Act, the plaintiff claims, at the very least, an entitlement to relief under s 40C(6).
So far as the Third Decision is concerned, the plaintiff alleges that the decision to require that the investigator accompany the plaintiff to collect his mobile phone and enter the plaintiff’s house to do so: (a) was contrary to the right in s 12(a) of the HR Act; and (b) involved a failure to give proper consideration to that right.
The Commission contended that the examination summons provided authority for the provision of the mobile phone. If, which it denied, the examination summons contravened s 40B(1), it contended that contravention did not give rise to invalidity under the IC Act. Therefore, either the court could not order an injunction or it would not be a proper exercise of judicial power to order an injunction.
So far as the claim alleges a failure to give proper consideration to the right to privacy, the Commission pointed to the terms of the request for the issue of the examination summons, which expressly addressed human rights considerations and, in particular, s 12 of the HR Act.
The claims based on the HR Act appear to have been drafted in ignorance of the internal application process which led to the issue of the examination summons referred to earlier. That document made specific reference to the right to privacy under s 12(a) of the HR Act. The submissions of the plaintiff pointed to case law suggesting that the consideration obligation in s 40B permits the court to engage in a process more akin to merits review, rather than being a requirement to have regard to a relevant consideration in ordinary administrative law. It is not necessary to determine that contention on this application.
It is clear that an examination summons can involve an interference with a person’s privacy. The right in s 12 of the HR Act is therefore qualified by the operation of s 147 of the IC Act, pursuant to s 28 of the HR Act. Within the scope of s 147, there is an issue as to whether or not the requirement in s 147(2) that the Commission be satisfied that it is “reasonable” to issue an examination summons is then qualified by the unqualified terms of s 12. While it is neither necessary nor appropriate to attempt to finally determine such an issue on this application, given the qualification of the s 12 right by s 147, it would seem a rather awkward interpretation to then have part of s 147 qualified by the broad terms of s 12. However, it may remain open to treat s 40B as containing a separate right to have the unqualified terms of s 12 considered. That could operate reasonably if any such consideration took place in the context of recognising that the right had been qualified by s 147.
Claim in tort
The plaintiff claims that he was falsely imprisoned during the trip to obtain his mobile phone, that the entry into his home constituted a trespass at his apartment and that the seizure of his mobile phone was a trespass to his personal property.
So far as the application for injunctive relief is concerned, that only relates to the data on the mobile phone and hence it is only the trespass to the mobile phone that could be relevant. There may be a factual dispute as to precisely what occurred at the point where, inside the apartment, the mobile phone was provided to the investigator, although the versions of events put before the court in the affidavits of Mr Denham and Ms Ashton are able to be reconciled in a manner consistent with acceptance of Ms Ashton’s version of events. Having regard to my acceptance that there is a serious question to be tried as to the relationship between the powers in s 147 and ss 117, 119 and 121 of the IC Act, I accept that there is a serious question to be tried as to there being a trespass to the personal property of the plaintiff. However, as with the earlier claim, it is not an obviously strong one.
Balance of convenience
In the event that an interlocutory injunction is refused, then, in relation to documents not the subject of a claim for privilege, the privacy of those documents will be lost. That privacy will not be lost to the world at large, but it will be lost in relation to the officers of the Commission. Even if the court were to ultimately determine that the documents ought not to have been disclosed, the disclosure to officers of the Commission will, in all likelihood, have already occurred. In that sense, the harm is irreparable, but no specific adverse consequence to the plaintiff has been identified from that breach of privacy where knowledge of the otherwise private material will be confined within the Commission.
So far as claims for privilege are made, if an injunction is not granted, as pointed out earlier, those claims can be addressed by some articulation of a bona fide claim over documents or categories of documents. I have indicated earlier that I do not accept the contention that any appropriate articulation of the subject matter of the claims of privilege is practically impossible in the circumstances. That is all the more clear when regard is had to the fact that the principal categories of privilege are likely to be those of the Territory as distinct from the plaintiff. The Commission has not denied the potential applicability of ss 161-162 of the IC Act in the event that a claim is articulated. Therefore, even if an injunction is refused, there is no reason to consider that a regime similar to that worked out in Levy could not allow the claims to be addressed.
In the event that an injunction is refused and the plaintiff succeeds in his claims in the proceedings prior to the publication of any investigation report by the Commission, he will have the opportunity to make submissions about the outcome of his claims for the content of any report as a result of the operation of s 188 of the IC Act. I recognise that this would be no answer to the breach of privacy constituted by examination of the contents of the mobile phone by the Commission, but it may ameliorate additional harm caused by the more widespread disclosure of material from the mobile phone.
If an injunction is granted then that will have the effect of impeding, to some extent, the investigations of the Commission in relation to a long-running inquiry. Plainly, in assessing the balance of convenience, it is necessary to take into account the public purpose reflected in the terms of the IC Act. There is a public interest in the Commission being able to complete its investigation and report on its investigation. The granting of an injunction would put the Commission in a position of being required to finalise the investigation without the benefit of material from the plaintiff, delay the finalisation of the investigation until the determination of the substantive proceedings by the court, or issue a new examination summons which would identify the documents or categories of documents to be produced and hence allow the plaintiff control over what is produced. In assessing these consequences for the Commission, I have taken into account that the plaintiff is not a central figure in the investigation.
Orders
Ferguson
ACT Integrity Commission
(1968) 118 CLR 618
(1986) 161 CLR 148
The plaintiff has sought an injunction restraining the Commission from accessing, converting into any readable format, or reviewing any data (including metadata) extracted from the plaintiff’s mobile phone handset on 12 June 2025.
On the evidence before the court, there is only a very limited factual contest. It appears to be accepted by the Commission that there was no express request for and consent to entry into the premises by the Commission’s investigator. However, there is not, at this stage, any challenge to the investigator’s version of events which would indicate actions and directions on the part of the plaintiff consistent with consent to enter to the extent that entry occurred. It is a characterisation of events consistent with there being no complaint at the time by the plaintiff, or his solicitor, about the procedure adopted in relation to the production to the Commission of the mobile phone.
I accept there is a serious question to be tried as to the relationship between the specific statutory provisions referred to by the plaintiff and the powers that could be implied in the circumstances of this case arising from s 147. Once again, this ground is not obviously strong, although probably somewhat stronger than the earlier grounds.
In correspondence, the position adopted by the plaintiff was that there was no practical way by which claims for privilege could be dealt with other than by the Commission narrowing the terms of the summons. That is reflected in the correspondence from his solicitor on 2 July 2025, which provided: … we consider there to be no prospects of a workable regime for the identification and exclusion of privileged material via search terms.
The correspondence from the Commission proposed that the Commission consult with the Solicitor-General in relation to claims of public interest immunity. That was opposed in correspondence from the plaintiff’s solicitor, which asserted that only through narrowing the scope of the summons was it possible to avoid intractable issues in relation to privilege.
The plaintiff’s solicitor’s correspondence asserted that, “in the absence of a workable solution to the privilege question”, the claim of privilege was made over “the entirety of the handset”, necessarily encompassing all documents on the handset and hence the whole content of the Cellebrite download.
The position of the Commission was that a claim of privilege must identify the particular communication in respect of which the claim of privilege is made. In correspondence on 9 July 2025, the plaintiff was invited to use his mobile phone to identify the communications over which privilege was claimed. The Commission recognised that this could be done by providing search terms (such as dates, parties and neutral words or phrases) which would be understood as making the relevant claim.
The issue between the parties is as to how specific a claim of privilege must be in order to trigger the operation of s 161. This occurs in a context in which it will ultimately be necessary for the Commission to consider, and potentially the Supreme Court to determine, a claim over a particular communication or particular document. If claims may be made at a high level of generality, then that will have the effect of triggering the operation of s 161 and, given the likely response of the Commission to such general claims, require applications to the Supreme Court to resolve them. Requiring a degree of specificity in a claim would permit the Commission to give some more detailed consideration to its merits and hence only require applications to the Supreme Court where there is a dispute over the validity of a claim over identifiable documents.
The statute does not, in terms, identify any threshold of specificity or genuineness in relation to claims of privilege. In ACT Integrity Commission v Levy (a pseudonym) [2022] ACTSC 240; 20 ACTLR 1 at [24], McCallum CJ’s explanation of the nature of a privilege claim under the IC Act recognised that such a claim may be subject to a qualification that it be a “bona fide” one. The Commission pointed to the definition of privilege in s 174 of the IC Act, which requires that the privilege be a “privilege a person is entitled to claim in a proceeding before a court or tribunal”. The Commission emphasised that only a privilege that is claimable by the person making the claim is covered by the definition. That was said to be significant in circumstances where any privilege in relation to Territory legal advice or public interest immunity was that of the Territory and not of the plaintiff.
I accept that there is a serious question to be tried as to whether or not the plaintiff has made a claim of privilege for the purposes of s 161. That is something which will depend upon the determination of a question of mixed fact and law, requiring identification of the claims that were made and determining, based upon the proper interpretation of s 161, whether those were sufficient to trigger the obligations under s 161(3) to consider the claim and take one of the two courses identified in s 162 of the Act.
Having said that, as this issue turns upon whether the claim made by the plaintiff has been specific enough to be a claim within s 161, and the Commission has recognised its obligations under ss 161 and 162 if such a claim is made, it is relevant, when considering the balance of convenience, that it is open to, and reasonably practicable for, the plaintiff to make a claim which is undoubtedly sufficient to meet the requirements of s 161, and hence to protect any privilege that he is entitled to claim under the IC Act. To the extent to which he may not be entitled to claim a privilege which is in fact a privilege of the Territory, any claim that he purported to make under s 161 would serve as notice to the Commission of a need to communicate with the Territory in order to determine the scope of any relevant claims.
In noting the capacity of the plaintiff to identify any claim for privilege, I do not accept the submission advanced in correspondence from the plaintiff’s solicitor to the Commission that such a course is practically impossible. That appears to me to have been a tactical position adopted by the plaintiff for the purposes of correspondence in an endeavour to persuade the Commission to serve a more narrowly targeted examination summons in substitution for the one that it in fact served. I infer that the position that was adopted in the correspondence was adopted because of a recognition that any detailed engagement by the plaintiff with a process to identify the scope of claims of privilege would, in fact, demonstrate that it was practicable to define the scope of those claims and yet allow the Commission to examine material which was not privileged but which was relevant to its investigation.
Assuming that the existence of s 147 itself does not determine the plaintiff’s claim, other issues would arise, including: (a) whether any unlawfulness under s 40B would render the decision invalid or, alternatively, simply be a gateway to relief under s 40C(6); (b) whether an injunction would be an available remedy, having regard to the fact that any interference with an entitlement to claim a privilege is not an interference with a legal right: Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; 265 CLR 646; and (c) whether an injunction would be an appropriate remedy as a matter of discretion, given the purposes for which the examination summons was issued and the fact that any trespass is complete: Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; 272 CLR 177 at [68], [99]-[104].
I accept that this ground raises a serious question to be tried. It involves resolving questions of law as to the relationship between ss 12 and 40B of the HR Act and s 147 of the IC Act. It then involves the application of those provisions in the circumstances to both the First Decision and the Third Decision. Notwithstanding that there is a serious question to be tried, having regard to the terms of s 147 and the evidence that is put before the court, both as to the matters considered by the Commissioner before issuing the examination summons and the circumstances in which the investigator entered the premises, it cannot be said that the prospects of relief being granted that would preclude interrogation of the Cellebrite download are high.
While I have accepted that there is a serious question to be tried in relation to the grounds relied upon for the purposes of the injunction application, my assessment of the strength of the plaintiff’s claims is such that I do not consider that the balance of convenience favours the grant of interlocutory relief. On the material that has been put before the court, the factual and legal merits of the claims appear to favour the Commission. Fundamentally, that is because s 147 permits a very significant interference with the privacy and property rights of the plaintiff and, as I have explained earlier, it remains open to the plaintiff to make any bona fide claim for privilege that is available to him, notwithstanding the refusal of the injunction.