Johns v Australian Securities Commission

Johns v Australian Securities Commission - [1993] HCA 56 - HCA 1990 case summary — Zoe

[43]

Powers conferred for one purpose cannot lawfully be used for other purposes without giving rise to an abuse of power. Hence, in the absence of express provision, the Act cannot be taken to have authorized the use and disclosure of seized documents for purposes other than police purposes. And in Morris v Director of the Serious Fraud Office [7] , Sir Donald Nicholls V.-C. said in reference to information acquired by exercise of statutory powers: The compulsory powers of investigation exist to facilitate the discharge by the S.F.O. of its statutory investigative functions. The powers conferred by s. 2 are exercisable only for the purposes of an investigation under s. 1. When information is obtained in exercise of those powers the S.F.O. may use the information for those purposes and purposes reasonably incidental thereto and such other purposes as may be authorized by statute, but not otherwise. Compulsory powers are not to be regarded as encroaching more upon the rights of individuals than is fairly and reasonably necessary to achieve the purpose for which the powers were created. That is to be taken as the intention of Parliament, unless the contrary is clearly apparent. A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information. The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature. Where and so far as a duty of non-disclosure or non-use is imposed by the statute, the duty is closely analogous to a duty imposed by equity on a person who receives information of a confidential nature in circumstances importing a duty of confidence. 1. [1992] Ch. 225, at p. 234. The Vice-Chancellor's view in this respect was affirmed on appeal: see [1992] Ch., esp. at pp. 261, 262. 2. [1993] Ch. 372, at p. 381.

[59]

Prima facie, the A.S.C. and Ms. Megay were obliged by s. 127(1) to keep the Johns transcripts confidential except to the extent to which disclosure was authorized for the purpose of the performance of a function of the A.S.C. Prima facie, Mr. Johns had a corresponding right to insist on the maintenance of that confidentiality [18] . But, as s. 127(4)(b) authorizes disclosure to State agencies, the confidentiality of the transcripts was vulnerable to destruction by exercise of that authority. The prima facie obligation imposed on the A.S.C. and Ms. Megay to keep the transcripts confidential affected the manner in which they could lawfully exercise the discretion under s. 127(4)(b) to lift the condition against use of the transcripts in public hearings. The exercise of a statutory power or authority may annihilate or modify an antecedent right or duty [19] , but that is not to say that the antecedent right or duty is irrelevant to the manner in which the statutory power or authority is to be exercised. The antecedent right or duty is a relevant factor affecting the discretionary exercise of the statutory power or authority. It will not ordinarily be a determinative factor, because statute will usually confer the power or authority for some public purpose embracing factors beyond the rights of, or duties owed to, an individual. Thus, in the present case, Mr. Johns' prima facie right to confidentiality of the transcripts was a relevant factor to be taken into account in deciding whether to disclose the information contained in the transcripts to a State agency, but it was not determinative of the question. It is clear, however, that the confidentiality of the transcripts was taken into account in the decisions to release the transcripts to the Royal Commission and to permit their use in public hearings. Those decisions are not open to attack on the ground that a material factor was not taken into account. Nor could an argument founded on unreasonableness impugn a decision to make the Johns transcripts available for use by the Royal Commission. The holding of public hearings was a proper function of the Royal Commission and a decision to permit the use of the transcripts for that purpose was within the bounds of reasonableness and was made for a purpose for which authority under s. 127(4)(b) was conferred.

[66]

There remains the question of the relief against H.W.T. and the A.B.C. Counsel for Mr. Johns submits that, as the information contained in the transcripts has not been generally disseminated by the media and as the Royal Commission imposed a ban on further dissemination, the information is not in the public domain. In support of this submission, counsel cited passages from cases in which the courts have acknowledged that relief can be given to restrain a defendant from publishing confidential information after some limited publication has occurred [23] . A defendant who, having received information in circumstances which impose a duty of confidence, makes a limited publication in breach of that duty, can be restrained from further breaching the duty by making a wider publication. But that is not the present case. Here the transcripts were exhibits tendered before the Royal Commission sitting in public. H.W.T. and the A.B.C. obtained copies of the exhibits as documents already in the public domain. When the proceedings of a court, tribunal or commission created by statute or in exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain [24] . Information published in those circumstances enters the public domain by a lawful gate. Once in the public domain, it can be freely used or disseminated. Information obtained by the media in this way is not "imparted so as to import an obligation of confidence": The Commonwealth v John Fairfax & Sons Ltd [25] , per Mason J. In such a case, the public domain is not measured by the extent of media reporting. If media reporting were the measure of the public domain in relation to information published in such proceedings, the defamation laws would have to be reformulated. It is unnecessary to consider the question whether a defendant to whom information was imparted in circumstances which imposed an obligation of confidence can, by a wide publication of the information in breach of that obligation, avail himself of a defence that the information is thereafter in the public domain [26] . This case concerns information which was already in the public domain at the time when H.W.T. and the A.B.C. acquired it. In Marcel v Commissioner of Police of the Metropolis , Browne-Wilkinson V.-C. said [27] :

[219]

As Black C.J. and von Doussa J. noted, transcripts of examinations are in a quite different position to a report made following an investigation. In the first case the transcripts will contain information which the examinee, in this instance Mr. Johns, has sworn to be true. The opportunity to answer allegations presented itself when he was asked questions and, no doubt, when he was asked to read the record, make any corrections and sign it. In the second case there may be findings of fact at odds with the evidence of the person examined or with other evidence. The opportunity to be heard in that situation is an opportunity to comment on the report [57] . But in the case of the public disclosure of an examinee's evidence, what exactly is the opportunity to be afforded? As Black C.J. and von Doussa J. pointed out [58] , it can only be in relation to the disclosure itself and there may be good reasons for disclosure which the A.S.C. would not wish to reveal. The A.S.C. might decide, in compliance with the A.S.C. Law, to make transcripts available to a law enforcement agency investigating possible offences. To give an examinee an opportunity to be heard as to whether the transcripts should be made available might well destroy the investigation. While this is not the only circumstance to which s. 127(4) of the A.S.C. Law relates, it does point to the nature of the power with which the sub-section is concerned, that is, providing particular information to governments or governmental agencies to assist them in carrying out their functions. The power at issue here is the power to make transcripts available to the Royal Commission on a basis that does not preclude their publication. The question must be whether Mr. Johns was entitled to be heard as to the exercise of that power, there being no confidentiality attaching to the material independent of the operation of the A.S.C. Law. If, as a matter of construction of the A.S.C. Law, that power exists, there is nothing in its nature that required the A.S.C. to hear from Mr. Johns why the power should not be exercised. The A.S.C. Law imposes an obligation of confidentiality on the A.S.C. but it is an obligation the A.S.C. may shed, acting bona fide in the circumstances provided. Those circumstances are such as not to require that an opportunity to be heard be afforded before the power is exercised.

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