//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2010] FCA 385
procedural. The Court amended the 15 March orders to restrain disclosure of information obtained from or referring to the applicants or the first applicant’s employees, dismissed the third and fourth...
This was an interlocutory decision, not a final ruling on whether the OPI-ACLEI investigation was valid or whether evidence was improperly obtained. The Court would not let the OPI send an interim report about the investigation to Parliament at that stage, because no specific need for immediate reporting had been shown and the investigation could continue. The Court did, however, temporarily prevent the OPI respondents from passing on information obtained from the applicants, or referring to them or the first applicant's employees. The restraint preserved the disputed material while the Court considered the applicants' challenge. It did not stop the DPP from assessing other, non-disputed information.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,509 words · generated 30/09/2026
Nationwide News Pty Ltd and Paul Whittaker brought proceedings concerning an investigation into an alleged leak of sensitive information related to Operation Neath, described in the judgment as a terror investigation. Their application sought relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth), including a writ of prohibition and an injunction. They also sought interim orders restraining reporting and public disclosure about the investigation under provisions of the Commonwealth Law Enforcement Integrity Commissioner Act 2006 and the Victorian Police Integrity Act 2008 (Vic) (PI Act) [1].
5 cited instruments linked from this judgment.
On 15 March 2010, the Court made interim orders restraining the respondents from reporting on the corruption investigation or disclosing information about it to the public [3]. The applicants later settled their proceeding against the Integrity Commissioner and ACLEI. The undertakings by those respondents included not publishing specified material, not using documents or information obtained from the applicants or their employees during the investigation, and giving the applicants an opportunity to review a report that referred to them before its release [5].
The remaining respondents, the Director of Police Integrity and the Office of Police Integrity (OPI), sought permission to transmit an interim report to the Victorian Parliament. They relied on s 28(2) of the PI Act, which permits the Director to report to Parliament at any time on a matter arising in connection with the performance of the Director's functions. The applicants opposed that change to the existing restraint [11]-[12].
The applicants also sought a more specific restraint preventing the OPI respondents from disclosing information obtained during the investigation if it had been obtained from them or referred to them or employees of Nationwide News. This included disclosure to the Victorian Director of Public Prosecutions (DPP) under s 112 of the PI Act [25]-[29].
Gordon J refused the requested variation that would have allowed the interim report to go to Parliament [13], [23]. She granted the applicants' requested amendment restraining disclosure of the defined disputed information [28], [35]-[37]. The order was temporary. It did not decide whether the investigation was invalid or whether the information had been improperly obtained [32].
The Court treated the parliamentary-reporting request and the proposed disclosure to the DPP as distinct questions.
For the proposed parliamentary report, the Court examined the statutory framework. Section 28(1) required an annual report on the Director's functions during each financial year, to be transmitted as soon as practicable after that year ended under s 29(1). The proposed interim report was not an annual report under s 28(1). Section 28(2) gave the Director discretion to report at any time, but the respondents had not demonstrated a duty or specific need to report on this investigation immediately [14]-[16].
The Director's view that public-interest considerations were “very high” and Parliament should be informed did not, by itself, establish that immediate transmission was necessary. The Court noted that the Director was accountable to Parliament through the annual reporting obligation and could also make a discretionary report under s 28(2). On the evidence before it, the Director had not established a need to report under that discretionary provision at that time [16].
The Court also considered urgency. A constitutional notice had been filed under s 78B of the Judiciary Act 1903 (Cth). Section 78B(5), quoted in the reasons, preserved a court's ability to hear and determine urgent interlocutory relief where it considered that necessary in the interests of justice. Gordon J did not decide whether s 78B(1) had been satisfied, because she concluded that the application to transmit the report should fail on other grounds [17]-[18].
The applicants alleged that a purported joint investigation between the OPI and ACLEI was invalid, and that information obtained from the applicants or their employees during it was tainted. The Court regarded those allegations as raising a serious question to be tried [20]. It emphasised that the use that could be made of information obtained during the impugned investigation was at the centre of the proceeding. Interim orders were therefore directed at preserving that subject matter until the underlying issues could be resolved [21].
The proposed interim report could include information affected by those unresolved allegations. Because the Court could not yet identify which parts of a report might be affected, it refused permission to transmit the report in the form sought [19]-[21]. The Court also rejected the suggestion that Parliament needed an interim update because it otherwise had to rely on online press reports. The investigation could continue, and the Director had already announced the investigation in a press release on 4 August 2009. The Court's reasons were also available to Parliament [22].
The proposed referral to the DPP raised a different balance. Section 112(1) of the PI Act allowed the Director, during or after an investigation, to refer a matter relevant to the DPP's functions. The applicants did not seek to prevent a referral that excluded the disputed information [29]. The Court identified competing public policies: the desirable goal of bringing a wrongdoer to conviction, and the undesirable effect of judicial approval or encouragement of unlawful methods of obtaining evidence [30]. It did not decide how s 112 applied to information obtained in an invalid investigation, nor whether the information had been invalidly obtained [31]-[32].
The scope of the order mattered. The applicants sought a restraint limited to information obtained from them or referring to them or Nationwide News employees. The Court considered that this was no broader than necessary to preserve the subject matter and the effective exercise of its jurisdiction [33]-[35]. It was a temporary delay, not a permanent prohibition. The DPP could still assess non-disputed information, and the Court found no material showing that a relevant limitation period was about to expire [36]-[37].
This judgment did not finally resolve the legal status of the investigation, establish that any evidence was unlawfully obtained, or determine the ultimate scope of s 112 of the PI Act. The Court expressly said it had not heard final argument and had formed no view on whether the purported joint investigation was ultra vires or whether the disputed information had been obtained invalidly [32]. It would therefore be inaccurate to treat the reasons as a final ruling on those questions.
The decision's practical effect was interlocutory. Before the additional order, the 15 March orders restricted reporting on the investigation and public disclosure about it. The April decision declined to create an exception for the interim parliamentary report and added a restraint concerning disclosure of the defined disputed information, including to the DPP [3], [23], [35]-[37].
The reasons apply established interlocutory concepts to the circumstances before the Court: preserving the subject matter of litigation, considering whether there is a serious question to be tried, and keeping the order proportionate to that purpose [20]-[21], [33]-[35]. The Court also recognised the competing public-policy considerations associated with evidence-gathering and prosecution, citing authorities including The Queen v Swaffield, Bunning v Cross, Ridgeway v The Queen and A v Hayden [30].
The judgment did not amend the statutory powers in ss 28 or 112. It addressed whether the respondents should be permitted to exercise those powers in a particular way while the proceeding remained unresolved. Nor did it set a general rule that information obtained in an allegedly invalid investigation must always be withheld from a prosecutor. Its reasoning depended on the serious question raised, the defined scope of the information, and the need to preserve the subject matter pending determination [20]-[21], [33]-[35].
The Court also addressed delay in criminal proceedings. It accepted that criminal justice should take place without unreasonable delay, but noted there is no common law right to a “speedy trial” and that the material did not establish an imminent filing deadline that would make the limited restraint unacceptable [37]. That discussion formed part of the assessment of the interim order, rather than a ruling about any particular prosecution or offence.
At [20], Gordon J stated: “Those issues present a serious question to be tried.” This refers to the applicants' allegations that the joint investigation was invalid and that information obtained during it should be treated as improperly or illegally obtained. In plain English, the applicants had raised a sufficiently substantial issue for the Court to preserve the disputed material while the case continued. The statement was not a finding that the allegations were true.
At [21], the Court said the use that could be made of information from the impugned investigation was “the very subject matter of the litigation”. The practical point was that disclosure could affect the dispute before it was decided. The order's preservation purpose was therefore tied directly to the subject of the proceeding.
At [30], the Court described the question as “not a simple one” and identified two public-policy considerations: bringing wrongdoers to conviction and avoiding judicial approval or encouragement of unlawful evidence-gathering. In plain English, the Court acknowledged that withholding information could affect prosecution, but that passing on evidence potentially obtained improperly raised a separate concern.
At [31], Gordon J said that even if the respondents' interpretation of s 112 were correct, it did not answer the other public-policy concern. This was not a final interpretation of s 112. It explained why the respondents' statutory-power argument did not, by itself, resolve the interlocutory question.
At [32], the Court made clear that it had “formed no view” on whether the purported joint investigation was ultra vires or whether the disputed information was obtained invalidly. This is an important limit on the decision. The order preserved the position without deciding the merits.
At [36], the Court said: “What is at stake is delaying the passing on of information pending determination of whether the information should be passed on.” In plain English, the Court viewed the order as temporary and protective, rather than an instruction that the information could never be disclosed.
At [37], the Court noted that the DPP could assess non-disputed information. This limited the practical reach of the restraint: it applied to the disputed information defined by reference to the applicants and Nationwide News employees, not every item obtained during the investigation.
The reasoning is most closely connected to interlocutory applications where a party alleges that information was obtained through an invalid investigation and seeks to prevent its onward disclosure before the validity question is decided. In this case, the Court found a serious question to be tried about the alleged invalidity of the purported joint investigation and the status of information obtained from or referring to the applicants [20], [30]-[32].
The decision is particularly relevant where the requested order is framed narrowly around the material said to be affected, rather than stopping all use or disclosure of investigation material. Gordon J relied on the limited scope of the applicants' request when rejecting the contention that the order was too broad [34]-[35].
The decision also illustrates how a court may assess claimed urgency in an application to transmit information to a prosecuting authority. Relevant circumstances in this judgment included whether a statutory time limit was shown to be imminent, whether the restraint was temporary, and whether the DPP could consider other information in the meantime [36]-[37].
For a parliamentary-reporting request, the judgment shows the significance of distinguishing a mandatory annual report from a discretionary report. The Director had an annual reporting obligation under s 28(1), but the proposed interim report relied on the discretionary power in s 28(2). The respondents did not establish a specific duty or need requiring immediate reporting on these facts [14]-[16].
These points should be read narrowly. The judgment does not say that every allegation of an invalid investigation justifies a restraint, or that every proposed referral to a prosecutor must await final judgment. The Court's decision depended on the particular serious question, the information identified by the applicants, the form of relief sought, and the evidence about urgency and public interest [20], [33]-[37].
The judgment text supplied here contains no decisions after 22 April 2010 discussing or applying Nationwide News Pty Ltd v Integrity Commissioner. It therefore does not establish how later courts have treated the decision.
Within this judgment, Gordon J cited authorities addressing public policy and evidence, including The Queen v Swaffield, The Queen v Ireland, Bunning v Cross, Ridgeway v The Queen and A v Hayden [30]. She also cited Jago v District Court of New South Wales and Adler v District Court of New South Wales in discussing delay and the absence of a common law right to a speedy trial [37]. Those citations are part of the reasoning in this decision; the supplied text does not provide later treatment of this judgment itself.
The reasons also record that the validity of the investigation and the status of the disputed information remained to be determined at a substantive hearing [32]. No outcome of that later hearing is included in the material supplied. Any account of subsequent proceedings or later judicial treatment would require sources beyond this judgment.
The central merits questions remained open. The Court did not decide whether the purported joint investigation was beyond power, whether the information had been obtained invalidly, or what legal consequences would follow if either proposition were established [20]-[21], [32].
The judgment also did not finally decide the respondents' construction of s 112 of the PI Act. Gordon J assumed for the interlocutory application, without deciding, that the respondents' interpretation might be correct, then held that it did not dispose of the separate public-policy concern [31]. The substantive relationship between the statutory referral power and information alleged to have been improperly obtained was therefore unresolved.
The boundaries of any eventual final relief were also open. The Court said it was unnecessary at that point to exhaustively identify the subject matter of the proceeding between the applicants and the OPI respondents. It noted that the applicants sought narrower relief than a prohibition on disclosure of every item obtained in the investigation [21], [35]. Whether a final order would take the same form as the interlocutory order was expressly not determinative of the interim question [33].
The parliamentary-reporting issue could also change if circumstances changed. The Court allowed for a later application to vary the orders if supported by relevant affidavit evidence [23]. Similarly, the Court noted that the Director could seek variation if events relevant to urgency changed, including those associated with prosecution timing [37].
Finally, the judgment does not state the outcome of the later hearing on the constitutional notice or the objection to competency. Those issues were to be heard on 7 May 2010, after the present interlocutory decision [4], [7]-[9]. No conclusion about jurisdiction, the ADJR Act claim, or the ultimate proceeding can be drawn from these reasons alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
BETWEEN: NATIONWIDE NEWS PTY LTD (ACN 008 438 828)
AUSTRALIAN COMMISSION FOR LAW ENFORCEMENT INTEGRITY
REASONS FOR JUDGMENT 1 These proceedings were filed on 15 March 2010. The application sought a writ of prohibition, an injunction and other relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in relation to the proposed publication of a report by the Respondents about a leak of information in relation to Operation Neath - a terror investigation. The application also sought an interlocutory injunction restraining the Respondents from reporting on the investigation of a corruption issue pursuant to s 54 of the Law Enforcement Integrity Commissioner Act 2006 (Cth) (LEIC Act) and s 29 of the Police Integrity Act 2008 (Vic) (PI Act) and from disclosing information to the public about that investigation pursuant to s 209 of the LEIC Act and s 28 of the PI Act until the hearing and determination of the application or further order. 2 The application for interlocutory relief came on for hearing on 15 March 2010. 3 The First and Second Respondents, represented by Dr Donaghue, consented to a form of interlocutory injunction. The Court indicated that the substantive matter would be listed for final hearing on 12 April 2010. The Third and Fourth Respondents, represented by Ms McKenzie, after initially opposing the granting of the injunction, indicated they did not oppose the granting of the injunctions sought by the Applicants. As a result, orders were made as follows (the 15 March Orders): UPON THE UNDERTAKING OF THE APPLICANTS by their Counsel: (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and (b) to pay the compensation referred to in (a) to the person there referred to. THE COURT ORDERS THAT: 1. The Respondents and each of them, individually and by their officers, employees, agents and assigns, be restrained from reporting on the investigation of a corruption issue pursuant to s 54 of the Law Enforcement Integrity Commissioner Act 2006 (Cth) and s 29 of the Police Integrity Act 2008 (Vic) and from disclosing information to the public about the investigation pursuant to s 209 of the Law Enforcement Integrity Commissioner Act 2006 (Cth) and s 28 of the Police Integrity Act 2008 (Vic) until the hearing and determination of the application or further order. … Other procedural orders were made but they may be put to one side. 4 On 24 March 2010, the Third and Fourth Respondents filed a notice of objection to competency of the application for an order under the ADJR Act on the grounds that there was no decision or conduct under an enactment for which review was sought. 5 On 31 March 2010, the proceedings as between the Applicants and the First and Second Respondents were settled and the following orders were made by consent: UPON THE UNDERTAKING GIVEN BY THE FIRST AND SECOND RESPONDENTS: (a) not to publish Exhibit "JHQ4" to the affidavit of Justin Healy Quill sworn on 15 March 2010 or anything in substantially similar form to that exhibit; (b) not to publish, or otherwise use in any way, any documents or information obtained from the Applicants or their employees during the course of the investigation commenced on or about 6 August 2009, save that this undertaking does not extend to any documents or information obtained after the date of these orders; (c) the Applicants will be given an opportunity to review any report that is prepared by the First and Second Respondents that refers to the Applicants or their employees prior to its release. THE COURT ORDERS BY CONSENT THAT: 1. The Applicants be given leave to discontinue the proceeding as against the First and Second Respondents with no order as to costs. 2. The Applicants file and serve a Notice of Discontinuance by 31 March 2010. 3. Order 1 of the Orders made in this proceeding on 15 March 2010 be discharged as against the First and Second Respondents. 6 As noted earlier, the proceedings were otherwise listed for trial on 12 April 2010. Further orders were made on 31 March 2010 on the assumption that the trial of the substantive issues would proceed on 12 April 2010. 7 On 8 April 2010, the Third and Fourth Respondents filed a notice of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act). The s 78B Notice was served on the Attorneys - General of the Commonwealth, the States and the Territories on 8 April 2010. As a result of the service of the notice, the trial was vacated and the matter was listed for further directions on 15 April 2010. 8 On 15 April 2010, a number of applications were filed or foreshadowed.
Amended Constitutional Notice 9 First, the Third and Fourth Respondents provided the Court with an amended constitutional notice pursuant to s 78B of the Judiciary Act. On 15 April 2010, on the assumption that the amended notice would be filed, I made case management orders for the filing of submissions to enable the Court to hear the issues raised by the amended constitutional notice and the notice of objection to competency. On 16 April 2010, the Third and Fourth Respondents filed the amended constitutional notice. Those issues will be heard on 7 May 2010.
Amendments to the 15 March Orders 10 Secondly, the Applicants and the Third and Fourth Respondents sought to amend the 15 March Orders.
Proposed Interim Report to Parliament 11 The Third and Fourth Respondents sought an amendment to the 15 March Orders to permit the Third Respondent (the Director of the OPI) to provide an interim report to the Victorian Parliament pursuant to s 28(2) of the PI Act (the interim report). The decision to provide the interim report was made by the Director of the OPI on or about 9 April 2010. A draft of the interim report was prepared and was provided to the Court. The amendment sought by the Director of the OPI and the Fourth Respondent (the OPI) was described as an amendment to permit the Director of the OPI "to exercise the powers and discharge the duties conferred by ss 28 and 29 of the [PI] Act in relation to the Director's [interim] report". In other words, the Director of the OPI sought an amendment to the 15 March Orders to permit him to transmit the interim report to the Victorian Parliament. Counsel for the Third and Fourth Respondents submitted (and the affidavit evidence asserted) that the Director of the OPI had formed the view that the investigation conducted was one where the public interest considerations were very high and that it was essential to the Director's role as an independent officer of the Parliament that the Parliament be informed about that investigation. The Applicants opposed the amendment. 12 In further support of the application, the Third and Fourth Respondents filed an affidavit sworn by the OPI's general counsel in which he set out the following facts and matters: 1. since the establishment of the statutory office in November 2004, the Director of the OPI had conducted more than 100 investigations and had exercised the power conferred by s 28(2) of the PI Act on nineteen occasions; 2. in the last 12 months, the Director of the OPI had exercised the power conferred by s 28(2) of the PI Act on three occasions: 2.1 in June 2009, Offers of gifts and benefits to Victoria Police employees; 2.2 in July 2009, Review of the use of force by and against the Victorian Police; 2.3 in February 2010, Information Security and the State Surveillance Unit. 3. he had been informed by the Director of the OPI and believed that the Director views the exercise of the power conferred by s 28(2) of the PI Act as one that is appropriately reserved for those matters where the public interest considerations are high, including matters where there may be evidence of systemic corruption or serious misconduct within Victoria Police, and matters where the integrity of police operations and the safety of police officers and the public may have been, or may be, compromised; 4. he had been informed by the Director of the OPI and believed that the Director views his investigation into the possible leak of information about Operation Neath by a Victorian Police member as one where the public interest considerations are very high and it is not only appropriate but essential to the Director's role as an independent officer of the Parliament that the Parliament be informed about that investigation. 13 For the reasons that follow, I refuse to grant the amendment sought by the Third and Fourth Respondents which would permit the interim report to be transmitted to the Victorian Parliament. 14 First, there is no statutory requirement that the Director of the OPI transmit to the Victorian Parliament, this month or in the foreseeable future, a report dealing with the investigation concerning Operation Neath. 15 Sections 28 and 29 of the PI Act provide: 28. Annual and other reports to Parliament (1) The Director must make a report to Parliament on the performance of his or her functions under this Act during each financial year. (2) The Director may at any time make a report to Parliament on any matter arising in connection with the performance of his or her functions under this Act. (3) The Director must not include in any report under this section any information that discloses the identity of a person to whom, or in respect of whom, a direction has been given under Division 5 of this Part or Division 4A of Part IV of the Police Regulation Act 1958. 29. Transmission of reports to Parliament (1) The Director must cause a report under section 28 to be transmitted to each House of Parliament- (a) in the case of a report under section 28(1) - as soon as practicable after the end of the financial year to which it relates; (b) in the case of a report under section 28(2) - as soon as practicable after it is completed. (2) The clerk of each House of Parliament must cause the report to be presented to the House on the day on which it is received or on the next sitting day of the House. (3) If the Director proposes to transmit a report to Parliament when Parliament is in recess, the Director must- (a) give one business day's notice of his or her intention to do so to the clerk of each House of Parliament; and (b) give the report to the clerk of each House on the day indicated in the notice; and (c) publish the report on the Director's Internet site as soon as practicable after giving it to the clerks. (4) The clerk of each House must- (a) notify each member of the House of the receipt of a notice under subsection (3)(a) on the same day that the clerk receives that notice; and (b) give a copy of a report to each member of the House as soon as practicable after the report is received under subsection (3)(b); and (c) cause the report to be presented to the House on the next sitting day of the House. (5) A report that is given to the clerks under subsection (3)(b) is taken to have been published by order, or under the authority, of the Houses of Parliament. (6) The publication of a report by the Director under subsection (3)(c) is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and any other enactment or rule of law relating to the publication of the proceedings of Parliament apply to and in relation to the publication of the report as if it were a report to which those sections applied and had been published by the Government Printer under the authority of Parliament. (7) For the purposes of this section, Parliament is in recess when each House stands adjourned to a date to be fixed by the presiding officer of that House. 16 Section 28(1) obliges the Director of the OPI to report to the Victorian Parliament on the performance of his or her functions under the PI Act during each financial year (s 28(1)) and requires that report to be transmitted as soon as practicable after the end of the financial year (s 29(1)). The interim report is not a report under s 28(1). Instead, the Director of the OPI submitted that he should be entitled to submit the interim report in the exercise of the power under s 28(2). Except for the reference to public interest considerations being "very high" and the investigation being concerned with a matter which directly relates to the integrity of police operations, the Third and Fourth Respondents did not identify any obligation (whether by statute or otherwise) or any other specific fact or matter that required or necessitated the Director of the OPI to report to the Parliament on an interim basis about this investigation in the foreseeable future. As Counsel for the Third and Fourth Respondents submitted, the application was not made on the basis that the Director of the OPI was under any duty to report but at a generalised level that the Director of the OPI is an officer of the Parliament and the PI Act contemplates that the Parliament will be kept informed of the functions of the Director. At its highest, Counsel for the Third and Fourth Respondents submitted that the report was required to "clear the line of communication and accountability that lies between the Director and the Houses of Parliament". The Director of the OPI is accountable to the Parliament - he must report to the Parliament each year at or just after the end of the financial year: s 28(1). He is also able to report to the Parliament at any other time on any matter arising in connection with the performance of his or her functions under the PI Act: s 28(2). In the present case, he has not demonstrated a need to report under s 28(2) of the PI Act. 17 The lack of urgency was emphasised by Counsel for the Applicants. As he submitted, s 78B(5) of the Judiciary Act 1903 (Cth) provides that: Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so. (Emphasis added). 18 Having filed and served a constitutional notice under ss (1), the Applicants submitted that until s 78B(1) was satisfied, the Court could not hear and determine any application unless the application related to the grant of urgent relief of an interlocutory nature. The interlocutory relief sought by the Third and Fourth Respondents was not urgent. For present purposes, it is unnecessary to resolve whether s 78B(1) has been satisfied because I am not persuaded that the application should otherwise succeed in any event. 19 Secondly, contrary to the submissions of Counsel for the Third and Fourth Respondents, the contents of the interim report do not provide further support for amending the 15 March Orders. Even if one assumes (without deciding) in favour of the Third and Fourth Respondents that it is correct to describe the interim report as containing the "bare outline" of the steps taken by the Third and Fourth Respondents in an investigation (which they accept is ongoing), that itself is not a sufficient reason for allowing the Director of the OPI to transmit the interim report to Parliament. 20 One of the principal complaints of the Applicants is that the purported joint investigation between the OPI and the Australian Commission for Law Enforcement Integrity (ACLEI) was invalid and that information obtained from the First Applicant or its employees during the course of that invalid investigation is tainted evidence that should not be disclosed by the OPI. That complaint presents a number of issues. For present purposes, it is sufficient to describe those issues as being, or arising from, the allegation that the investigation was invalid and that information obtained in the course of the investigation is to be treated as improperly or illegally obtained. Those issues present a serious question to be tried. 21 For present purposes it is then sufficient to note that the use that may be made of information obtained in the course of an impugned investigation is the very subject matter of the litigation. The interlocutory orders that have been made thus far have been made with a view to preservation of that subject matter pending the hearing and determination of the proceeding. Or, to the put the same point another way with specific reference to the First and Second Respondents, the subject matter against those parties was the use that they could make of the documents or information they obtained from the Applicants or their employees during the course of the investigation commenced on or about 6 August 2009: see [5] above. What constitutes the subject matter of the proceedings between the Applicants and the Third and Fourth Respondents need not be exhaustively identified or defined at this point in the proceeding. It is sufficient to note that if the Applicants were to succeed in establishing that the purported joint investigation was in fact a joint investigation which was ultra vires, it may be (I do not say that it should or does follow) that some of the evidence obtained by the OPI during the course of that investigation is "tainted". Until those questions are resolved, it is simply not possible to identify which part or parts of any report will be affected. I return to consider these questions in further detail below. 22 In addition to the considerations that have been mentioned so far, there are other reasons why the interim report should not be disclosed. Counsel for the Third and Fourth Respondents submitted that Parliament should not have to rely upon press reports from online news agencies about the state of the investigation and the Director of the OPI should be entitled to report to Parliament that he had reached a certain point, was restrained by Court order and will provide the Parliament with a full report when the restraint is lifted. The 15 March Orders prevent the Director of the OPI from reporting on the investigation of a corruption issue pursuant to s 29 of the PI Act and from disclosing information to the public about the investigation pursuant to s 28 of the PI Act until the hearing and determination of the application or further order. However, the Director of the OPI is not restrained from continuing his investigation - it continues unimpeded. Secondly, it is not right to say that Parliament has to rely on press reports from online news agencies about the state of the investigation. On 4 August 2009, the Director of the OPI issued a press release announcing the investigation into the alleged leak of sensitive information related to Operation Neath and stated that the investigation would be limited to the Victorian jurisdiction and would focus on whether there had been any law enforcement misconduct associated with the alleged leak. These reasons for decision are available to the Parliament. The Parliament is well aware of the existence and current state of the investigation. 23 For those reasons, I would refuse the Third and Fourth Respondents the amendment they seek to the 15 March Orders to permit the Director of the OPI to provide Parliament with the interim report at this point in time. Of course, if events change, the Director of the OPI can apply for a variation to the 15 March Orders supported by the relevant affidavit evidence.
Non publication of draft report to parliament 24 A further order sought by the Third and Fourth Respondents was an order restraining the Applicants from publishing the interim report until the report is tabled in Parliament except as required or permitted by statute. The Applicants' Counsel gave an undertaking to the Court that they would not disclose or publish the draft interim report and, further, would not use it, other than for the purpose of this litigation, if it becomes relevant to do so. In light of that undertaking, it is unnecessary to address that issue further in these reasons and it may be put to one side.
Disclosure of the "disputed evidence" to the Director of Public Prosecutions 25 The Applicants also sought an amendment to the 15 March Orders to restrain the Third and Fourth Respondents from disclosing information obtained during the investigation, insofar as that information was obtained from or refers to the Applicants or any of the First Applicant's employees (the disputed information). This form of relief, in part, mirrors the final relief the Applicants obtained against the First and Second Respondents. What is added by the Applicants to the form of interlocutory relief now sought is reference to information that "refers to" the Applicants or any of the First Applicant's employees. The reason the Applicants sought the order was to restrain the Third and Fourth Respondents from disclosing the disputed information to the Director of Public Prosecutions for the State of Victoria (the DPP). 26 The immediate question to be resolved on the present application is as follows - where a party (the Applicants) alleges that an investigating authority (the OPI) invalidly obtained information and evidence, should that investigating authority be entitled to pass that information and evidence on to another authority before the question of validity of the steps by which the disputed information has been obtained has been determined? Put another way, should the Third and Fourth Respondents be restrained from disclosing the disputed information to the DPP? 27 The Applicants submit that the Third and Fourth Respondents should be restrained. The Third and Fourth Respondents submit that the Court should not make the proposed order because: 1. the proposed amended injunction is too broad; 2. the Applicants have not established that it is necessary to make an order of the kind sought to ensure the effective exercise of the jurisdiction invoked in the proceeding; 3. no serious question for trial arises which justifies such an order; and 4. it would be contrary to public policy to make the order sought. 28 For the reasons that follow, I would grant the Applicants the amendment they seek to the 15 March Orders. 29 Section 112 of the PI Act entitled "Referral of matters to DPP" provides that: (1) At any time during or after completing an investigation, the Director may refer to the Director of Public Prosecutions any matter that is relevant to the performance of functions or duties by the Director of Public Prosecutions. (2) If the Director refers a matter to the Director of Public Prosecutions under subsection (1), the Director may include that fact, and any details of the referral that the Director considers appropriate, in any report of the investigation under this Act. It is the exercise of this statutory power (to the extent that the reference would include the disputed information) which is affected by the proposed order. The Applicants do not seek to restrain a referral which does not include the disputed information. 30 In my opinion, there is a serious question to be tried about whether the disputed information should now be disclosed to the DPP, whether in performance of the powers given by s 112 of the PI Act or otherwise. The question is not a simple one. The fact that the Director of the OPI has a statutory power of disclosure invites the question - disclosure of what? That question raises directly two competing requirements of public policy - the desirable goal of bringing to conviction a wrongdoer and the undesirable effect of curial approval or even encouragement being given to unlawful conduct in the obtaining of evidence: The Queen v Swaffield (1998) 192 CLR 159 at [21] - [28] and the authorities cited including The Queen v Ireland (1970) 126 CLR 321 at 335; Bunning v Cross (1978) 141 CLR 54 at 74-77; Ridgeway v The Queen (1995) 184 CLR 19 at 31-33 and A v Hayden (1984) 156 CLR 532 at 557, 563, 574, 586-587, 595 and 598. 31 The Third and Fourth Respondents submit that the words in s 112 of the PI Act do not establish a precondition to the validity of any referral to the DPP that the information referred was received in the course of a valid investigation. Even if the Third and Fourth Respondents construction of s 112 of the PI Act is correct (a matter I do not need to decide for the purposes of the present application), that does not address the other competing requirement of public policy - that encouragement of illegal or invalid methods of obtaining evidence (including improper investigative practices) is a worse evil than the non-prosecution, or the prosecution on more limited material, of a criminal: J D Heydon, Cross on Evidence (18th Australian Edition, 2010) at [27230]. 32 I have not heard final argument, and have formed no view, about whether the purported joint investigation was ultra vires. I have not heard final argument, and have formed no view, about whether the disputed information was obtained invalidly. In particular, I have formed no view about what conclusions, if any, should be drawn from the course of events recorded in the course of the investigation to the extent to which those matters have been the subject of evidence adduced for the purposes of this application. This is not a final hearing. Those issues can and should be resolved at a substantive hearing as soon as practicable. 33 It is convenient, next, to deal together with the first and second points made by the Third and Fourth Respondents. Any question about the breadth of the relief now to be granted turns ultimately upon an assessment of what is necessary to preserve the status quo so that the subject matter of the substantive proceeding is preserved. In addition, it is necessary to describe the ambit of any injunction in terms that are certain. Whether any final relief would take the form in which interlocutory relief is granted is not determinative of whether the interlocutory relief sought is too broad. 34 The form of order proposed by the Applicants, in my view, is no broader than is necessary to ensure that it protects the subject matter of the proceeding and the effective exercise of the jurisdiction invoked in the proceeding. As just noted, the Applicants seek to restrain the Third and Fourth Respondents from disclosing only the disputed information, not any other information obtained during the investigation. They do not seek to restrain the revelation of any and every piece of information obtained in the course of the investigation. 35 Given that the subject matter of the proceeding is information obtained by processes which the Applicants contend were invalid, it may well have been open to argue that an injunction should now be granted that would prohibit any disclosure of any information obtained in that investigation. But that is not what the Applicants seek. They seek narrower relief. To couch the interlocutory relief in terms of information obtained from the Applicants or referring to the Applicants or employees of the first named Applicant does not go beyond what is necessary to preserve the subject matter of the proceeding. 36 The Third and Fourth Respondents further submitted that the Court should refuse the order on the grounds that enforcement of the order would "result [in] the non-disclosure by the Director or the OPI of information they have received" including the disputed information, that enforcement of the order "would impede the administration of criminal justice" and that the submission by the Applicants that there was no urgency in the referral to the DPP was "specious". Those submissions are rejected. First, the order that is in question is a temporary order. What is at stake is delaying the passing on of information pending determination of whether the information should be passed on. Secondly, as noted earlier, the order will not result in the non-disclosure of a criminal offence by the Director or the OPI or the non-disclosure of any of the information they received - it will delay transmission of just the disputed information. In these circumstances, it is not right to say that the administration of criminal justice is impeded. 37 Further, it remains open to the DPP to consider and assess the sufficiency of the non-disputed information and identify what (if any) charges would be appropriately laid on the basis of that information. Finally, although I accept that it is a fundamental principle that the administration of criminal justice should take place without unreasonable delay, there is no common law right to a "speedy trial" (Jago v District Court of New South Wales (1989) 168 CLR 23 at 31, 40-45 and 59-60; Adler v District Court of New South Wales (1990) 19 NSWLR 317 at 323-324) and any consideration of so called "urgency" as suggested by the Director of the OPI and the OPI must be put into its proper context. One of the functions of the DPP is to institute, prepare and conduct on behalf of the Crown proceedings in respect of any indictable offence: s 22 of the Public Prosecutions Act 1994 (Vic) (PPA Vic). There is no statutory time limit in relation to the institution of proceedings in respect of indictable offences. The Third and Fourth Respondents referred to the fact that one of the offences that may have been committed is a summary offence entailing a strict 12 month filing deadline. There is no material suggesting that the expiration of that time limit is imminent. Even if it is, it is important to observe that it is not a function of the DPP to institute proceedings for summary offences: see s 22 of the PPA Vic. The DPP can take over and conduct a proceeding in respect of certain summary offences: see for example s 22(1)(ab) and (b) of the PPA Vic. But the decision to institute summary proceedings must be made by another authority - presumably the Victorian Police. No material is advanced that would demonstrate why that cannot occur in the ordinary way. Again, if events change, the Director of the OPI can apply for a variation to the 15 March Orders supported by relevant affidavit evidence. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.
Nationwide News Pty Ltd
Integrity Commissioner
(1984) 156 CLR 532
(1990) 19 NSWLR 317
(1978) 141 CLR 54
(1989) 168 CLR 23
(1995) 184 CLR 19
(1970) 126 CLR 321
(1998) 192 CLR 159
The Court amended the 15 March orders to restrain disclosure of information obtained from or referring to the applicants or the first applicant’s employees, dismissed the third and fourth respondents’ oral applications, ordered specified material sealed pending further order, granted liberty to apply, and reserved costs.