Samsonidis v Commissioner, Australian Federal Police

REASONS FOR JUDGMENT Background 1 Mr Dimitrios Samsonidis is being held in a Greek prison while he awaits trial on drug dealing charges. A United States Drug Enforcement Agency ('DEA') officer, Mr Livanis, has given evidence in an Athens Court that he had received information from Australian authorities about Mr Samsonidis' activities. The information allegedly came from the tapping of Mr Samsonidis' telephone by Australian authorities. Mr Livanis summarised the content of the alleged conversation in his evidence in Athens. Mr Samsonidis disputes the accuracy of the alleged conversation and wishes to obtain a transcription of it. He has been unable to do so from the Greek authorities. 2 Mr Samsonidis' solicitors have requested a copy of the transcript of the alleged conversation but the Australian Federal Police ('AFP') have refused to supply it to them. Mr Samsonidis then applied to the Court seeking various remedies designed to enable him to access the transcript. He applied under s 39B of Judiciary Act 1903 (Cth), ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 21 of the Federal Court of Australia Act 1976 (Cth). 3 At the hearing of the application Mr Samsonidis sought a declaration that Telecommunications (Interception and Access) Act 1979 (Cth) ("the TIA Act") permits the AFP to provide him with the material he seeks. The respondent Commissioner contends that s 67 of the TIA Act confers a discretion on an officer of the AFP to disclose information in certain circumstances. However, he argues that the discretion cannot be exercised lawfully to permit disclosure to Mr Samsonidis, for his purposes at this point in time. He says the purpose for which Mr Samsonidis seeks release of the particular information is not a "permitted purpose" within the TIA Act. 4 Mr Samsonidis contends that the TIA does not prohibit the Commissioner from providing him with the material he seeks but, on the contrary, the Commissioner has a discretion to provide him with the relevant documents. That is the issue which I am required to resolve. The evidence 5 The only evidence before me is that contained in an affidavit of Mr Nikakis, a solicitor representing Mr Samsonidis. That affidavit discloses that on 28 June 2006, in the Athens Court of First Instance, a DEA agent gave evidence that he had received information from Australian authorities concerning lawfully intercepted telephone conversations involving Mr Samsonidis. The DEA agent's statement to the Athens Court is exhibited to Mr Nikakis' affidavit. It refers to a conversation between Mr Samsonidis and another on the evening ("Melbourne time") of 2 March 2006 in which a discussion occurred concerning the sale of illegal drugs. 6 By letter dated 20 July 2006, Mr Nikakis wrote to the AFP requesting a copy of the transcripts of "telephone intercepts" of conversations involving Mr Samsonidis for use in Mr Samsonidis defence in Athens. 7 By letter dated 1 August 2006, an agent with the AFP responded to Mr Nikakis, saying amongst other things, that the communication of lawfully intercepted material was prohibited by s 63 of the TIA Act. 8 By letter dated 15 August 2006, Mr Nikakis wrote to the AFP, attaching the relevant parts of the transcript of the DEA officer's evidence. Mr Nikakis sought copies of documents containing or referring to the information mentioned in that evidence. He said that the information and the document sought by him were "now well and truly in the public arena" and not exempt under the Freedom of Information Act 1982 (Cth) ('the FOI Act'). 9 The 15 August 2006 letter prompted a response from the Freedom of Information section of AFP's legal area by letter dated 4 September 2006. It advised Mr Nikakis that access to the documents had been "deferred" under s 21(1)(c) of the FOI Act. It said that "their premature release" would be contrary to the public interest. The legislative context 10 Part 2‑6 of the TIA Act is headed, "Dealing with intercepted information etc". Earlier, s 6E(1) defines "lawfully intercepted information" as: "… information obtained … by intercepting, otherwise than in contravention of s 7(1), a communication passing over a telecommunications system." 11 Section 7(2) provides various exceptions to the general position in s 7(1) that telecommunications are not to be intercepted. One of these, in par (ab), is for lawful telephone interceptions. 12 Section 63 of the TIA prohibits the communication of lawfully intercepted information or the making use of it or the recording of it. It is worthwhile setting out this section in full: "(1) Subject to this Part, a person shall not, after the commencement of this Part: (b) communicate to another person, make use of, or make a record of; or (c) give in evidence in a proceeding; lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1). (2) Subject to this Part, a person must not, after the commencement of this subsection: (a) communicate interception warrant information to another person; or (b) make use of interception warrant information; or (c) make a record of interception warrant information; or (d) give interception warrant information in evidence in a proceeding." 13 Under s 67(1), an officer or staff member of the AFP may communicate to another person, make use of, or make a record of lawfully intercepted information and interception warrant information for "a permitted purpose or permitted purposes, in relation to [the AFP], and for no other purpose". 14 Relevantly, "permitted purpose" is defined in s 5 as a purpose connected with the investigation by the AFP of a prescribed offence, the making of a decision by the AFP whether or not to begin a proceeding, or a relevant proceeding in relation to the AFP. 15 Section 11 of the FOI Act allows a person access to documents of an agency such as the AFP, "other than an exempt document". Under s 38 of the FOI Act a document is exempt if disclosure of the document or the information contained in it is prohibited by a provision of another Act which is specified in Sch 3 or if s 38 is expressly applied to the document or the information by that provision or by another provision of that or another Act. Section 63 of the TIA Act is mentioned in Sch 3 of the FOI Act but s 67 of the TIA Act is not. 16 The parties agreed that the hearing would be limited to the question of the effect of the TIA Act and that the question whether there are any other grounds on which production of the information might be resisted by the respondent could be addressed at a later time. The s 63 point 17 Section 63 of the TIA Act has been amended over time to take into account two changed definitions. What is now known as 'lawfully intercepted information' was previously called 'lawfully obtained information'. What is now known as 'interception warrant information' was previously called 'designated warrant information'. There are minor differences in the changed definitions however they are not presently relevant. Section 63 has not otherwise been amended. It follows that references to 'designated warrant information' in earlier cases must be read as applying equally to 'interception warrant information'. 18 Mr Samsonidis' first submission is that s 63 of the TIA Act does not apply to lawfully intercepted information that has been published. He relies on the decision of the Full Court in Kizon v Palmer (1997) 72 FCR 409. That case concerned 'designated warrant information', which at the relevant time was defined in s 6EA of the TIA Act as being various information connected with a warrant issued under that Act. As with 'lawfully obtained information', s 63 generally prohibits the communication of 'interception warrant information' and, in its earlier form, prohibited the communication of 'designated warrant information'. 19 The applicant in Kizon v Palmer was aware of 'designated warrant information' that was to be used against him in a drug offence trial. He was aware of it because it was contained in an open affidavit, filed in proceedings to which he was a party. Lindgren J, with whom Jenkinson and Kiefel JJ agreed, said that a purposive construction of 'designated warrant information' was required and he referred to s 15AA(1) of the Acts Interpretation Act 1901 (Cth). He continued, at 434-435: "A purposive construction is necessary to avoid absurdity. It would be absurd that the prohibitions in s 63 should continue to apply to information of a kind referred to in the definition of 'designated warrant information' once that information is in the public domain by, for example, having been given in evidence publicly in a prosecution. There is no provision in Pt VII of the TI Act which expressly permits further divulging of designated warrant information which has been publicly given in evidence in a prosecution, yet according to a non-purposive construction, the prohibition would prevent a reporting of the evidence. This result cannot have been intended. Specific support for a purposive approach is found in the text of the definition of 'designated warrant information' itself. The opening words of par (b) of the definition, 'any other information that is likely to enable the identification of', suggest that par (a) is concerned with information about the fact that a TI warrant was or will be applied for (subpar (i)), was issued (subpar (ii)), existed or exists or did not or does not exist (subpar (iii)), or expired or will expire (subpar (iv)), which will enable identification of that which was not previously identified, namely, the particular telephone service in question or the particular person specified in the warrant as a person using or likely to use that service (see ss 45 and 46 of the TI Act). Finally, there is authoritative support for a purposive approach to the construction of Pt VII found in John Fairfax v Doe at 87E (Gleeson CJ) and Green v The Queen at 426-428 (Franklyn J)." 20 Mr Samsonidis submits that the purposive interpretation approach applies equally to 'lawfully intercepted information'. Schmidt J held as much in the New South Wales Industrial Relations Commission in Ryan v Director-General of New South Wales National Parks and Wildlife Service [2004] NSWIRComm 160 at [48] (that case actually concerned 'lawfully obtained information' under the previous s 63). 21 There are a number of differences between the current definitions of 'interception warrant information' and 'lawfully intercepted information'. Importantly, the definition of 'lawfully intercepted information' does not include the words "any other information that is likely to enable the identification of", which were words that Lindgren J said gave specific support to a purposive interpretation. It is not surprising that the definition of 'lawfully obtained information' does not include those words. This is because 'lawfully intercepted information' necessarily encompasses a more readily determinable class of information. It is information that is obtained by lawfully intercepting a telecommunication. 'Interception warrant information' on the other hand encompasses information about the application for, issuing of, existence of and expiry of a warrant, together with "information that is likely to enable the identification of" the relevant telecommunications service or a person likely to use that service. It thus encompasses a wider class of information. The absence from the definition of 'lawfully intercepted information' of the words referred to by Lindgren J does not provide a reason for departing from the purposive approach. At any rate, as I read Lindgren J's reasoning on the textual analysis point, it is additional to, and not merely a part of, his Honour's primary reason for preferring a purposive approach, namely that not to do so would result in absurdity. 22 A further distinction between the two concepts is to be found in their treatment in s 63, the full text of which I have set out above at [12]. Curiously, the prohibition on communication is expressed differently for each concept. For 'lawfully intercepted information' a person shall not communicate it in the relevant circumstances, whereas for 'interception warrant information' a person must not communicate it. Nothing appears to turn on this difference. The two sub-sections of s 63 prohibit the same four acts, namely the communication of, making use of, making a record of and giving in evidence, either 'lawfully intercepted information' in the case of sub-section (1) or 'interception warrant information' in the case of sub-section (2). However, the two sub-sections are organised differently. It is almost as if the drafter chose to adopt different formulations in order to avoid repetition. If that is the case, it is unfortunate; where two concepts are intended to be treated identically in legislation, the preferable course is to apply identical language to them. At any rate, I can see no presently material difference between the treatment of 'lawfully intercepted information' and 'interception warrant information' and so the decision in Kizon v Palmer must apply equally to the former. 23 The purposive approach to the construction of s 63 was taken by Merkel J in Carmody v MacKellar [1996] 791 FCA 1, which involved a challenge by a practising barrister to the issuing of warrants under the TIA Act that allowed the AFP to intercept his telephone communications. The basis of the challenge was that the intercepted conversations would necessarily involve privileged communications. His Honour said: "A barrister has alleged that confidential and privileged communications with his clients were unlawfully intercepted and recorded. These proceedings could also be taken by his clients, being the persons whose privacy and confidentiality is sought to be protected. Yet, if the AFP's submission is correct s 63(2) would operate to prevent those persons from seeking to protect their privacy by appropriate proceedings, by denying access to the very information they require to maintain such proceedings. Such an approach to construction impedes proceedings against law enforcement agencies for the protection of the very privacy the amendments were to procure." 24 Mr Samsonidis submitted that there are two purposes of the TIA Act. A number of cases have held that "[t]he fundamental objective of the [TIA] Act is to protect the privacy of communications passing between users of telecommunications systems": Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 297 per Sackville J; see also Brown v Commissioner of Australian Federal Police (1988) 83 ALR 477 at 480; Edelsten v Investigating Committee (NSW) (1986) 7 NSWLR 222 at 229.This purpose is evidenced by s 7(1) which provides that telecommunications are not to be intercepted. Subsequent sub-sections provide exceptions to that general position. The second purpose is to assist law enforcement by allowing the contents of certain conversations to be intercepted and used as evidence: Kizon v Palmer (1997) 72 FCR 409 at 442.In a more general sense, the purpose of the TIA Act is to strike a balance between, on the one hand, allowing law enforcement authorities to have access to important information and, on the other, protecting the privacy of members of the public. It does this by providing for a general prohibition on the interception of telecommunications and then providing narrow exceptions. 25 The respondent submits that Kizon v Palmer (1997) 72 FCR 409 does not apply to this case because it is relevantly distinguishable. The first point of possible distinction is that in Kizon v Palmer, the 'designated warrant information' had been published in Australia, whereas in this case it is alleged to have been published in Greece. I do not think anything turns on this distinction. The relevant purpose to be considered here is the law enforcement purpose. The reason why the Full Court in Kizon v Palmer found that it would be absurd to maintain the s 63 prohibition was that once information is public there is no purpose to be served in attempting to keep it confidential. This reason is of equal force whether the publication is in Australia or elsewhere. 26 The next point of possible distinction is the nature of the publication. In Kizon v Palmer, the authority that had gathered the 'designated warrant information' had chosen to publish it in open court. Here, any publication to Mr Samsonidis has been by the DEA and not by the respondent. In my view this is not a relevant distinction. Assuming the DEA officer's evidence to be correct, the respondent has published information to the DEA. Whether the DEA has breached s 63 of the TIA Act is not an issue before the Court; if the respondent has concerns about the way the DEA has used the information, that is a matter between them. What matters for present purposes is that the information has been published and that publication has come to the attention of Mr Samsonidis. It is this that demands the application of the purposive approach referred to in Kizon v Palmer. 27 The final point of distinction is related to the difference between the 'publication' evidence in the two cases. In the present case there is a paucity of evidence as to the circumstances in which the alleged conversation was adduced in court in Athens. Mr Livanis, the DEA agent, gave evidence to an Examining Magistrate, which was recorded in a Report, a translation of which is before the Court. Mr Livanis deposed that information concerning Mr Samsonidis came to his agency from "the Australian authorities". The DEA then conducted an investigation and determined that Mr Samsonidis and two others were said to be the heads of a drug network. The DEA then "contacted the Australian authorities to release the police records" of those three, "an action which they performed". Further on in the Report it is said that "On 2/3/2006, after the legal, according to Australia laws, tapping of Samsonidis' phone they heard at eleven o'clock at night Australian time, namely three pm Greek time, when Skouras contacted Samsonidis by phone and they told me that the two of them spoke in a foreign language between them, obviously in Greek". It is not clear who precisely the word 'they' in the above passage is intended to refer to. 28 It is evident from the Report that a conversation between Mr Samsonidis and a Mr Skouras was tapped (which I understand to mean was intercepted) and that the DEA was aware of the contents of that conversation. It is not clear that a transcript was made of the conversation, or by whom the conversation was intercepted. The respondent has neither confirmed nor denied that it is in possession of 'lawfully intercepted information'. All of this must be contrasted with the position in Kizon v Palmer, where the evidence was perfectly clear that the 'designated warrant information' had been referred to in an open affidavit filed in Australian court proceedings. 29 Because of the nature of the relief sought - to which I will come in due course - it is not necessary to resolve all the evidential issues disclosed by what is recorded at [27] and [28]. In particular, I do not need to decide whether the respondent did in fact intercept a telephone conversation involving Mr Samsonidis. The uncontested evidence of Mr Samsonidis' solicitor is that reference was made in a Greek court to what was said to be an intercepted communication involving Mr Samsonidis. How publicly this evidence was given is not clear, but I do not think this matters. The purposive approach mandated by Kizon v Palmer does not apply only where there has been publication to the world at large. That would lead to just as unjustified a result. The mischief in a non‑purposive approach that was recognised by Merkel J in Carmody v MacKellar is that a person who knows his communication to have been intercepted could not have access to the evidence of that communication that was needed to challenge its legality. Similarly, the mischief in the non‑purposive approach in Kizon v Palmer is an accused person not having access to information that is to be used against him in criminal proceedings in order that he may rebut that information. 30 The purposive approach means, at the least, that it cannot be the intention of the legislature that a person to whom 'lawfully obtained information' is published cannot use that information either to challenge the legality of its being obtained or to defend himself against any allegations made as a result of that information. In the latter case, such an interpretation would run contrary to the well-established principles of justice and fairness that require prosecutors to disclose materials to defendants: see R v Reardon [2004] NSWCCA 197 at [46]-[55] per Hodgson JA; R v Ulman-Naruniec [2003] SASC 437 at [136]-[146] per Sulan J. In circumstances where - as may be the case here - publication has not been to the world at large, s 63 of the TIA Act may still prohibit dealings that involve publication of 'lawfully intercepted information' to those not already aware of it. In this case, Mr Samsonidis has had published to him the purported fact that 'lawfully intercepted information' concerning him has been obtained. An interpretation that denies him access to that 'lawfully obtained information' would be absurd and, on the authority of Kizon v Palmer, such an interpretation must be rejected.