Flanagan v Commissioner of Australian Federal Police

THE HISTORY OF THE CLAIMS FOR PUBLIC INTEREST IMMUNITY Earlier Northrop J had said in the course of argument in the directions hearing (at 23): "An order for limited discovery would not prevent the respondent from relying upon some grounds of non-disclosure for say, public [interest] immunity and that sort of thing." Public interest immunity was, in fact, claimed as follows: On 14 November 1995, the first and second respondents, representing the AFP, filed a list of documents (being five affidavits relied on in support of the applications of the warrants) and claimed public interest immunity over the whole of them. On 29 November 1995, Mr Drew swore a public interest immunity affidavit. On 11 December 1995, the applicant filed a notice of motion seeking an order that the five affidavits be produced for inspection. On 17 January 1997, AFP officer Allen swore a public interest immunity affidavit. On 15 March 1996, the AFP filed a notice of motion seeking orders that the applicant not be entitled to inspect the affidavits on public interest immunity grounds; that the applicant's statement of claim be struck out and application be dismissed; and that the discovery order be varied to disallow inspection, or that the AFP be given an extension of time to appeal against the discovery order. On 18 March 1996, Davies J ordered the AFP to file a more detailed public interest immunity affidavit, allowed the AFP to amend its defence and deferred the hearing of the strike-out and appeal motions. On 4 April 1996, the AFP filed and served an "open" affidavit by AFP officer Mills annexing edited versions of the five affidavits. Mr Mills also swore a confidential affidavit, which was not filed. On 21 June 1996, during the hearing of the public interest immunity claim, before Davies J, the AFP raised statutory prohibitions as a possible bar to production of the five affidavits or part thereof; Davies J decided that a case should be stated to a Full Court. It was heard on 6 and 7 August 1996. On 31 January 1997, the Full Federal Court (Jenkinson, Lindgren and Kiefel JJ) answered the Stated Case. As has been noted, the reasons and orders of the Full Court are now reported at (1997) 142 ALR 488. On 3 March 1997, the AFP filed a notice of motion (now also returnable before me) seeking to vacate the discovery order, rather than seeking to pursue the part-heard public interest immunity claim. THE DISCHARGE BY CONSENT OF THE DISCOVERY ORDER On 24 March 1997, at the commencement of the argument on the notice of motion now before me to set aside the subpoena to the AFP, it was ordered, by consent of the present parties, that the order made by Northrop J on 24 October 1995 be vacated. It was accepted on both sides that it followed from the decision of the Full Court in Kizon, above, that the order for discovery must be set aside. THE ISSUE OF THE SUBPOENA FOR THE PRODUCTION OF THE FIVE AFFIDAVITS AND THE MOTION TO SET THE SUBPOENA ASIDE The context of the present application is that on 13 March 1997, a subpoena was issued at the request of the applicant for the production by the first respondent, representing the AFP, of the five affidavits in support of the applications for the warrants, this being the material the subject of the order for limited discovery; on 24 March 1997 the AFP moved to set aside the subpoena. The application made by this notice of motion is the subject of these reasons. THE LEGISLATIVE SCHEME In introducing its argument, the AFP draws attention to provisions of the "TI Act" which, in its submission, which I accept, may be grouped under four headings as follows: (1) As to the concept of disclosure · Sub-sections 63(1)(a) and (2)(a) to (c) of the TI Act provide that, subject to that Part of the Act - A person shall not 'disclose' (communicate to another person, make use of, or make a record of): (a) 'intercepted information' (warrant product); and (b) 'designated warrant information' (relating to the existence or details of TI warrants: s 6EA). · An officer of an 'agency' (including the AFP) may, for a permitted purpose in relation to the agency and for no other purpose, disclose intercepted information or designated warrant information: s 67. · A 'permitted purpose' is relevantly defined in s 5(1) to include: (a)(iii) a relevant proceeding in relation to the agency. · A 'relevant proceeding' is relevantly defined in s 6L(1) to include, in relation to the AFP: (a) a proceeding by way of a prosecution for a prescribed offence that is an offence against a law of the Commonwealth. · A Federal Court administrative review proceeding is not a 'relevant proceeding'. (2) As to the concept "give in evidence" · Sub-sections 63(1)(b) and (2)(d) provide that, subject to this Part: A person shall not give in evidence in a proceeding intercepted information or designated warrant information. · A 'proceeding' includes a Federal Court proceeding: s 5(1). · Sub-sections 77(1)(a) and (3) relevantly provide that: "Intercepted information and designated warrant information are not admissible in evidence in a proceeding except in so far as permitted by s 74." · Subsections 74(1) and (3) relevantly provide that: "A person may give intercepted information or designated warrant information in evidence in an 'exempt proceeding'." · An exempt proceeding is relevantly defined in s 5B to include: (a) a proceeding by way of a prosecution for a prescribed offence. · The combined effect of the definitions of 'prescribed offence' (s 5(1)), 'serious offence' (s 5(1)), 'class 1 offence' (s 5(1)) and 'class 2 offence' (s 5D) is that a Federal Court administrative review proceeding is not an 'exempt proceeding'. (3) As to the penalty for contravention · Section 105 provides that contravention of s 63 is an indictable offence punishable on conviction by imprisonment for a period not exceeding 2 years. (4) As to the exemption of certain criminal proceedings · The above prohibitions do not apply to an appropriate criminal proceedings. THE REASONING OF THE FULL COURT The AFP then submits, and I accept, that the following was relevantly decided by the Full Court in its answer to the questions in the Stated Case: · The prohibitions against disclosure in the TI and Customs Acts prevented the AFP from producing for inspection by the applicant under the discovery order, those parts of the five affidavits which contained information obtained from the telecommunications interceptions and listening devices, or designated warrant information, that is, information about the TI warrants or the related services or users (at 503, 504 and 522-3). · The prohibitions did not prevent the applicant, in resisting the AFP's public interest immunity claim, from placing reliance upon the AFP's "open" affidavit and the five annexed "edited" affidavits, or from contending that there is no public interest immunity which would prevent him from inspecting the documents (at 503, 504, 505, 507 and 510). · The word "person" in the prohibition provisions did not apply to or include the Court in this proceeding, so that the judge hearing the public interest immunity claim could examine those parts of the five affidavits containing the prohibited information (at 505-7). · The prohibition provisions were constitutionally valid for these reasons: By reference to their operation and effect, they fell well within the scope of the "telephonic services" power in s 51(v) of the Constitution, which is a "non-purposive power", so that a test of "reasonable proportionality", is inappropriate, being relevant only where it is sought to support the validity of a law by reference to the end or object of a head of power (such as the defence power in s 51(vi)); they were consistent with the freedom of communication on matters relating to the Commonwealth Government implied in the Constitution; and they did not destroy the Court's capacity to determine if there has been any excess of power, so they did not intrude into the judicial power of Chapter III courts and did not derogate from the direct vesting of judicial power in the High Court effected by s 75(iii) and (v) of the Constitution. · The reference in ss 5B(f) and 6L(1)(f) of the TI Act to a proceeding relating to "alleged misbehaviour, or alleged improper conduct, of an officer" is a reference to alleged misbehaviour or improper conduct of a kind commonly associated with disciplinary action against an employee or office-holder, such as dismissal, removal from office or other sanction. An alleged non-disclosure by an officer in breach of a possible duty, as applicant for a TI warrant, to make full and frank disclosure to the judge issuing the warrant, belongs "to a different realm of disclosure". This construction, adopted by Merkel J in Carmody v Phillips, unreported, 5 September 1996, is not to be preferred to the "narrower" construction adopted by Lindgren J (at 509).

· The definition of "designated warrant information" and the various provisions in the TI Act which invoke it are to be read purposively, to avoid absurdity. It would be absurd that the prohibitions in s 63 should continue to apply to such information once it is in the public domain, by, for example, having been given in evidence publicly in a prosecution (at 509-10). · Sub-section 63(2) is to be read down so as not to apply to designated warrant information already known to all relevant parties in the present proceeding. · Sub-section 63(2) of the TI Act does not prevent a person from compelling production of the documents in question to this or to any other court by the process of subpoena. Question 2(a) was answered affirmatively by the Full Court because it related to production to a person, as distinct from a court. Having compelled production of the documents to a court in which a person such as the applicant is being prosecuted for a prescribed offence, the person would be entitled to give the designated warrant information in evidence in that proceeding in the course, for example, of a hearing, on the voir dire, of the question of the admissibility into evidence against the person charged, of information obtained by a TI pursuant to a warrant (at 511). · The purpose of the prohibition on s 63(2) of the TI Act is not only one of protecting privacy. The prohibition is also directed to assisting law enforcement. Contravention of s 63(2) is, on its face, inimical to the processes of law enforcement, because it enables identification of a particular telecommunications service or person the subject of a TI warrant (at 511).

· Conformably with what another Full Federal Court had said in Flanagan v Commissioner of the Australian Federal Police (1996) 134 ALR 495, a challenge to a warrant directed to the admissibility of evidence in a trial should ordinarily be brought as part of the trial in order to avoid "fragmentation" of the trial (at 519). · The operation and effect of s 63 in the present case is to make certain evidence unavailable to the applicant, and so, in practice, to prevent him from proving a case of invalidity of a certain kind in administrative review proceedings. Where, as here, the applicant is being prosecuted, in order not to "fragment" the criminal proceeding, it is only in exceptional or extraordinary circumstances that this Court would grant relief in respect of a warrant (cf. Flanagan, above). The effect of s 63 is that it is impossible for a person in the applicant's position, in any proceeding other than an exempt proceeding, to establish what was contained in, or omitted from, the application and supporting affidavit, and, to that extent and in that respect, to establish that the "warrant" does not enliven the exception in para 7(2)(b) to the prohibition in s 7(1). Sub-section 7(1) and Part XA reveal an intention that the only rights which an individual is intended to have in respect of an interception are the rights provided for in the TI Act, and that the only remedies which he or she is to have are those provided for in Part XA. The map of substantive rights of the individual in respect of the interception of telephone communications is that laid down in the TI Act itself, and is not to be found elsewhere (at 520-1).

THE AFP SUBMISSIONS The AFP's submissions, were outlined as follows: l The essence of the case as pleaded (by the applicant) is that there was no evidence to justify Carr J's decisions to issue the warrants, and alternatively that the police officer who sought the warrants did not disclose to Carr J information that he had a duty to disclose. · In issuing a telephone intercept warrant or a listening device warrant, an eligible judge is under no duty to state reasons. None were stated here. For the applicant to succeed, he must show by reference to what was, or was not, before Carr J, or by reference to the terms of the warrants themselves, that his Honour erred in law in issuing the warrants. As Lindgren J observed (at 492): "....it is plain that the applicant relies heavily on the availability of discovery in order to mount his attack on the warrants. It is essential to his case as pleaded that he establish what information was provided to the third respondent in support of the applications for the warrants, but without discovery he cannot do so." · However, in light of the answers given by the Full Court to the questions stated, the applicant is prohibited by statute in the present proceeding from establishing what was, and was not, placed before Carr J, Lindgren J said (as has been noted) (at 520-1): "The effect of s 63 is that it is impossible for a person in the applicant's position, in any proceeding other than an exempt proceeding, to establish what was contained in, or omitted from, the application and supporting affidavit, and, to that extent and in that respect, to establish that the 'warrant' does not enliven the exception in s 7(2)(b) to the prohibition in s 7(1)." The effect of this prohibition is "in practice, to prevent him from proving a case of invalidity of a certain kind in administrative review proceedings" (per Lindgren J, at 520). · By contrast, [the applicant] can obtain and rely upon that material upon a voir dire in the criminal proceedings to make the same attack on the validity of the warrants as he seeks to make in this Court: see Lindgren J at 519. He has in fact pursued that course since commencing this proceeding. At the applicant's request, the Perth Magistrate's Court issued on 19 March 1996 a summons seeking production of the same material sought by way of discovery and subpoena in this proceeding. · As the applicant cannot succeed in respect of those grounds which involve proof of what was, or was not before Carr J, there can no longer be any basis for an order of discovery. It is now common ground that the order should be vacated. · For essentially the same reasons, the subpoena should be set aside. · Even if s 63 does not prohibit the production of information to the Court, a court not being a "person", the section clearly prohibits the applicant from making use of, making a record of, or giving in evidence, that information. See, generally, Lindgren J at 520-1. · As the applicant cannot make out a case based upon proof of what was or was not before Carr J, there can be no legitimate forensic purpose in this proceeding in the applicant obtaining access to that material: see R v Saleam (1989) 16 NSWLR 14 at 17-18. The subpoena is an abuse of process and should be set aside. THE APPLICANT'S SUBMISSIONS On behalf of the applicant, particular reliance is placed upon the following passage in the reasons of Lindgren J (at 511) where his Honour is dealing with an argument put by the applicant that the relevant provisions of the TI Act were beyond power: "Before I consider these three grounds of attack, two matters should be noted. First, it is appropriate to recall certain limits inherent in the nature of the answer given to question 2(b). That answer is that s 63(2) prevents the first respondent from producing for inspection by the applicant those parts of the first respondent's discovered documents which comprise designated warrant information. As noted earlier, designated warrant information is limited to information which enables a person to whom the information is revealed to identify a particular telecommunications service or person, as being the subject of a TI warrant. Further, s 63(2) does not prevent a person from compelling production of the documents in question to this or to any other court by the process of subpoena: question 2(a) has been answered affirmatively because it relates to production to a person as distinct from a court. Having compelled production of the documents to a court in which a person such as the applicant is being prosecuted for a prescribed offence, the person would be entitled to give the designated warrant information in evidence in that proceeding in the course, for example, of a hearing, on the voir dire, of the question of the admissibility into evidence against the person charged, of information obtained by the interception of a telecommunications service pursuant to the warrant." (Emphasis added).

The applicant's main argument is, in essence, as follows: · Section 63(2) creates a prohibition. It prohibits a person from doing four things. In particular, a person cannot communicate designated warrant information to another person. It is because of the interpretation given to s 63(2)(a) by the Full Court that discovery, or particular discovery, cannot be given by the AFP. The applicant accepts this. However, a court is not a person and this was also determined by the Full Court. It follows, the applicant's argument runs, that the prohibition which is imposed upon a person is not one which is imposed upon a court. · The next question is, can the court permit the access? Is the court, by permitting access, communicating designated warrant information? The applicant's submission is that the court cannot do so because the court is not a person. If the court permits access to the document upon application being made, the court, not being a person, is not communicating designated warrant information. Thus, the prohibition in s 63(2)(a) is not made good. There is no legal or statutory impediment to access being granted by a court on a subpoena. One could never prosecute the court for an offence under s 63(2)(a) if the court permitted access. The only prohibition is upon a communication by a person, so that the prohibition does not apply to a subpoena. · It is further submitted for the applicant that the question of the use of the subpoena process for a legitimate forensic purpose was, in effect, determined by Northrop J in ordering discovery on 24 October 1995. · It is then argued for the applicant that a purposive construction of the TI Act, that is, an interpretation which avoids absurdity, should be adopted. In this connection it is submitted by the applicant that a purposive construction would serve to emphasise and give effect to the fundamental objective of the TI Act, which is to protect the privacy of communications passing between users of telecommunication systems. Reliance is placed, in this connection, upon Taciak v Commissioner of Australian Federal Police (1995) 131 ALR 319 and Green v R (1996) 135 ALR 181. It is pointed out for the applicant that in the Full Court decision in Kizon, Lindgren J (at 509-10) favoured the adoption of a purposive approach to the construction of the TI Act. CONCLUSIONS ON THE MOTION As I read the reasons of Lindgren J, the present point has virtually been decided by the Full Court. If so, then of course I am bound to give effect to that reasoning. I should add that I respectfully agree with that reasoning even if I am not strictly bound by it in deciding this application. It is true that in the passage (at 511) which I have emphasised above, Lindgren J drew the well-known distinction, adverted to in Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 and other cases (e.g. Brown v Commissioner of Australian Federal Police (1988) 83 ALR 477), between communications to a person, on the one hand and communications to a court, on the other. It is also true that Lindgren J actually mentioned "this court" in the emphasised passage. But, as has been noted, this was said by his Honour in the course of his consideration of a constitutional argument. I do not think that Lindgren J was there even addressing, let alone sanctioning, the possibility that a subpoena might be used in an area where discovery was prohibited. Clearly, his Honour's observations were made in a generalised fashion only. No question had then arisen, even as a possibility, of the issue of a subpoena. In my view, the reasoning of the Full Court on the discovery question should be seen as properly analogous to the present question whether a subpoena could be used to cover the same ground. Of course, there are well-established formal differences between the two procedures, but they possess one over-riding common feature: each is a process of the court. It is trite that the court will prevent abuse of any of its processes in the exercise of its inherent jurisdiction. Whilst, ordinarily, as a matter of practical convenience, the solicitors for the parties in civil proceedings exchange documents between themselves, it should not be over-looked that this practice is part of the court's own procedure and that, if necessary, or appropriate, the documents discovered should be produced to the court as part of its own process. (See, generally, the explanation of the meaning and function of discovery and its historical context in Halsbury's Laws of England, 4th edition, vol 13, par 1). The list of documents discovered is, of course, filed with the court, so that any misuse of discovered documents is a contempt of court. Rimer J has recently observed (see Miller v Scorey [1996] 1 WLR 1122 at 1132) that misuse of discovered documents "involved a contempt of court (see Home Office v Harman [1983] 1 AC 280) and, in consequence, amounted to an abuse of the process of the court." The point is that discovery is not merely a private affair between the parties. On the contrary, it is a central part of the court's own procedures. It is also trite, as Jordan CJ observed in Commissioner for Railways v Small (1938) 38 SR 564 (at 574), that if a person is subpoenaed to produce a document, it is produced, in the first instance, to the court and not to the parties. But, in a frequently cited passage, Jordan CJ went on to say this (at 574): "He [the person subpoenaed] may, if he choose, state that he objects to their being handed to the parties for inspection. If so, it is for the Judge to make such examination of them as he thinks proper, and he may order such of them as he considers relevant to be read, or handed to the parties for inspection, as he may think desirable, with a view to their being tendered in evidence." (Emphasis added). In other words, production to the Judge is not something done for its own sake. It is not an end in itself. It is something done as part of the litigious process and in the resolution of disputes between litigants. Put differently, in this Court, in the exercise of its Federal judicial power, production to the Court is not something done as part of a freestanding, fact-finding inquiry executed by an inquisitor who may be described as a Judge. Production of subpoenaed documents to the Court is no more than an aspect of the resolution of the parties' dispute. It is not something done to satisfy the Judge's curiosity. In the ordinary course, and subject to any valid objection, the documents will be made available to the parties. That is, the documents have no intrinsic value from the Court's point of view. Their production to the Court, in other words, is no more than an incident of the process of adjudication. In the ordinary course, production of the documents, with the leave of the Court to the parties, may be expected; so that in a practical sense, there is little difference, in terms of availability to the parties, between discovery on the one hand, and a subpoena on the other. In my opinion, nothing of any particular consequence in this area turns on whether a "purposive" construction of the TI Act should be adopted. It is equivocal: One object of the legislation, clearly, is to protect privacy; but it is another obvious aim of the TI Act to ensure that communication of the contents of an intercept will only occur in exempt proceedings. This latter consideration accords with the approach taken in Flanagan's Case, above, and earlier authorities. It also accords with the proposition which the Full Court adopted in this matter; and it is an approach which, with respect, I also favour here, that, whilst it is impermissible to seek the subject information in this Court, it would be appropriate, and open to the applicant, to seek that information in aid of a proper challenge to the admissibility of evidence in the criminal proceedings. The point is that, excepting very special circumstances where, for instance, a pure point of law is sought to be agitated, as in Sankey v Whitlam (1978) 142 CLR 1, the proper forum for the pursuit of the type of information now sought by the applicant in his subpoena is the criminal court, rather than the administrative law jurisdiction of this Court. Even if (contrary to the view I have expressed that the present question was, in substance, decided by the Full Court) the matter were open for my own decision, I would still be of the opinion that the issue of this subpoena amounted to an abuse of process. If it be accepted, as it must, that the Full Court has decided at least that discovery is prohibited, it must follow, in my view, that any indirect attempt to obtain discovery by another route, namely, through the issue of a subpoena, should not be permitted in this Court. It is a principle of general application that it is not permissible to do indirectly what is prohibited directly, (see e.g. Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516 at 522-3). The legitimate pursuit of that information in an (exempt) criminal proceeding is another question. In the present procedural area, there is much to be said for the view that symmetry and consistency should be achieved in the control by the Court of all aspects of its procedures; so that, even if the prohibition (in this case, on discovery) does not extend originally, or directly, to the other process (that is, the subpoena), the prohibition should be viewed, nonetheless, as intended to apply derivatively to the subpoena process as well (see Trade Practices Commission v Port Adelaide Wool Company (1996) 132 ALR 645 and Telstra Corporation v Australis Media Holdings, McClelland CJ in Eq, Supreme Court of New South Wales, 20 February 1997, unreported, at 3). In any event, the courts have fashioned a particular rule in this area which, in my view, is applicable here. In a well known passage in Small's Case, above, at 574, Jordan CJ said: "It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents." (Cf. Re Federal Commissioner of Taxation; Ex parte Swiss Australia Ltd (1986) 68 ALR 587 at 590 and W D & H O Wills (Australia) v Philip Morris, Sundberg J, 13 June 1997, unreported). As one commentator has pointed out, this principle itself has perhaps a broader statutory, foundation. P M Wood, "Challenging Subpoenas, duces tecum, is there a third party view?" (1984) 10 Syd Law Rev 379 at 397 has observed: "The most patent case in which a subpoena may not be employed to obtain documents from a third party occurs where there has been an express or implied statutory exclusion of the process. This is a reflex of the principle that where a statutory method is prescribed for the achievement of a particular objective, it is impermissible to endeavour to achieve that objective through the subpoena process. This principle is also the basis of the rule preventing the substitution of the subpoena process for discovery against a party." See also Steele v Savoury [1891] WN 195; Newland v Steer (1865) 13 LT 111; and Selby v Fraser (1857) 5 WR 341. The broader basis of this approach was also applied in Elder v Carter Ex parte: Slide and Spur Gold Mining Co (1890) 25 QBD 194 and see also Hedges v Burchell (1913) 17 CLR 327. In my view, the broader, statutory, foundation is applicable here. Whether a purposive or literal interpretation of the TI Act is adopted, effect must be given, in my view, to the clear words of s 63(2) in the present context. It will be recalled that it is there provided as follows: "63(2)Subject to this Part, a person must not, after the commencement of this subsection: (a) communicate designated warrant information to another person; or (b) make use of designated warrant information; or (c) make a record of designated warrant information; or (d) give designated warrant information in evidence in a proceeding." As has been noted, exempt from the operation of that prohibition (by the introductory words "subject to this Part") is a disclosure of information in the course of prescribed criminal proceedings. Subject to that exception, I am of the view that neither discovery, nor the subpoena process, may be used in this Court in judicial review proceedings to circumvent the manifest intention of s 63(2). There is nothing, in my opinion, in the modern development of criminal procedures favouring a higher degree of disclosure by the prosecution of its case than previously required, which detracts from the clear language and obvious purpose of s 63(2) in its application to a proceeding other than an exempt one (cf. R v Reading Justices; Ex parte Berkshire County Council [1996] 1 Cr App R 239 and Wallace Smith Trust Co v Deloitte [1997] 1 WLR 257 at 274). Finally, I cannot, with all respect, accept that I should give any weight at this stage to the circumstance that Northrop J had previously made an order for limited discovery. That order has, in accordance with the reasoning of the Full Court, now been discharged. In my opinion, the subpoena ought to be set aside as an abuse of process. As indicated in the course of argument, it is appropriate that the unsuccessful party should be given leave to appeal from this interlocutory decision. ORDERS I make the following orders: 1. The subpoena issued on 13 March 1997 at the request of the applicant and addressed to Michael John Palmer, Commissioner of the Australian Federal Police, be set aside. 2. The applicant is to pay the first respondent's costs of the notice of motion. 3. The applicant is granted leave to appeal. I certify that this and the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate: Dated: 13 June 1997 Counsel for the Applicant: M Weinberg QC and G Defteros

Solicitor for the Applicant: Pryles & Defteros

Counsel for the First respondent: B Walker SC and N Williams

Solicitor for the First respondent: Australian Government Solicitor

Dates of Hearing: 24 March and 9 April 1997